
    (117 So. 127)
    No. 29015.
    Succession of BUTLER. In re BOWES et al.
    Jan. 18, 1928.
    On Rehearing. May 7, 1928.
    Normann, Breckwoldt & Schwartz, of New Orleans, for applicants.
   BRUNÓT, J.

Mrs. Sarah Butler died April 29, 1914, leaving an estate consisting of real and personal property, and four surviving children, viz. Mrs. Katherine Lory, widow of Joseph Bowes, Mrs. Sarah Lory, widow of Erick Anderson, William Lory, and Francis Lory, Jr. Francis Lory, Jr., left the state of Louisiana about eleven years prior to Mrs. Butler’s death, and has not been heard from since the year 1904. Shortly after Mrs. Butler’s death, her succession was opened, the heirs were recognized, and thereafter the three surviving children, present in the state, filed proceedings in the civil district court contradictorily with the absentee, Francis Lory, Jr., through a curator ad hoc, and, pursuant to the judgment rendered in those proceedings, the real property, belonging to the succession of the deceased, was sold, the entire estate was partitioned among the four heirs, and they were each sent into possession of their virile share thereof, and the Commercial-Germania Trust & Savings Bank (now the Canal Bank & Trust Company) was appointed curator for the absentee, Francis Lory, Jr. William Lory, one of the heirs, died in 19Í6, and was survived by six children. His succession was opened, and Fkancis A. Lory qualified as administrator thereof, and, in that capacity, he joins herein as one of the relators.

Relators aver that Francis Lory, Jr., is an absentee; that his wife died without issue; that he has not been heard from since 1904, and his existence is unknown; and that, through error of their rights under the provisions of article 77 of the Revised Civil Code, they opened the succession, and partitioned the estate of their deceased mother contradictorily with a curator appointed to represent him. They filqd a petition in the civil district court in which these facts are alleged, and in which they pray to be recognized as the sole heirs of the decedent, and that they be sent into absolute possession of the entire estate left by her. The learned judge of the civil district court declined to render a judgment as prayed for in the petition, but, instead, proposed to render a judgment in favor of the petitioners and sending them into the • provisional possession of the property.

Relators thereupon applied to this court for a writ of mandamus to compel the judge of the civil district court to render and sign a judgment recognizing them as the sole heirs of Mrs. Sarah Butler, deceased, and sending them into the possession and absolute ownership of her entire estate. Á rule nisi issued, the judge, for return, submits the matter on the face of the application and annexed documents, and in this form it is presented to us.

Relators seek, by a purely ex parte proceeding, to apply article 77 of the Civil Code, after having the absentee, Francis Lory, Jr., recognized as a forced heir; after having him and his coheirs sent into possession of his deceased mother’s estate; after having that estate partitioned contradictorily with a curator appointed to represent him; and after the absentee’s curator has been placed in physical possession of the property inherited by him.

Relator’s theory is that they made a grave mistake in provoking the several proceedings and obtaining the judgments just enumerated, and upon their ex parte showing and allegation of error they ask the court to ignore those decrees and grant them the relief prayed for in their application.

We think the district judge properly refused to do so, and properly proposed to apply article 57, C. C., which is as follows:

“When a person shall not have appeared at the place of his domicile or habitual residence, and when such person shall not have been heard of, for five years, his presumptive heirs may, by producing proof of the fact, cause themselves to be put by the competent judge into provisional possession of the estate which belonged to the absentee at the time of his departure, or at the time he was heard of last, on condition of their giving security for their administration.”

Relators have quoted excerpts from Martinez v. Wall, 107 La. 737, 31 So. 1023, and Succession of Williams, 149 La. 198, 88 So. 791.

Neither of these cases has the slightest application to the facts presented at this time. Both cases are well reasoned and express sound legal principle to which we adhere.

For these reasons, the rule nisi issued herein is recalled, and the application for writ of mandamus is denied, at relators’ cost.

ST. PAUL, J., dissents.

On Rehearing.

LAND, J.

Article 47 of the Revised Civil Code defines an absentee as follows:

“Art. 47: Absentees: Who are: Curator. When a person possessed of either movable or immovable property within this state, shall be absent,'or shall reside out of the state, without having appointed somebody to take care of his estate, or when the person thus appointed dies, or is either unable or unwilling to continue to administer that estate, then and in that case, the judge of the place where that estate is situated, shall appoint a curator to administer the same.”

Applying this article to the facts of the case, as detailed in our original opinion, it is plain that Francis Lory, Jr., did not fall within the class of absent persons to whom a curator should be appointed. He was not “possessed of either movable or immovable property within this state” at the date of his departure in the year 1903, or at the date he was heard of last in the year 1904. Although he resided out of the state, he had appointed no one to take care of his estate therein, as he had none at the time of his departure or at the time he was heard of last.

Article 57 of the Civil Code is found under the head, “Of the Putting Into Provisional Possession of the Heirs of an Absentee,” and reads as follows:

. “When a person shall not have appeared at the place of his domicile or habitual residence, and when such person shall not have been heard of, for five years, his presumptive heirs may, by producing proof of the fact, cause themselves to be put by the competent judge into provisional possession of tlw estate which belonged to the absentee at the time of his departure, or at the time he was heard of last, on condition of their giving security for their administration.”

This article is not applicable to the facts of the case. Relators could not be sent into provisional possession under article 57 of the Civil Code, as presumptive heirs of the absentee, for the reason that no estate belonged to him at the time of his departure in the year 1903, or at the time he was heard of last in the year 1904. In fact, no estate accrued to Francis Lory, Jr., until the death of his mother in the year 1914.

Relators, in their present application to be placed in absolute possession of the estate of Francis Lory, Jr., allege that he is an absentee ; that his wife died without issue; and that he has not been heard from since 1904; and that his existence is unlaunon.

Relators have brought themselves clearly within the provisions of article 77 of the Civil Code, which declares that:

“In case a succession shall be opened in favor of a person whose existence is not known, such inheritance shall devolve exclusively on those who would have had a concurrent right with him to the estate, or on those on whom the inheritance should have devolved if such person had not existed.”

In Pfister v. Casso, 161 La. 940, 109 So. 770, this court said:

“The deceased had also a brother, who disappeared more than 20 years before her death and has never been heard from since. He is made a party to this suit, through a curator ad hoe, as if he had an interest in this property. But he has no interest therein, since he had none when he disappeared, and his very existence was unknown at the time the succession of his sister was opened in his favor. Henee the entire succession devolved exclusively upon his ■coheirs, subject only to bis right to reclaim from them his proportion of the inheritance, should he reappear within 30 years from the death of his sister. R. C. C. Arts. 77, 78; Gahn v. Brown, 160 La. 790, 107 So. 576; Succ. of Derigny, 156 La. 146, 100 So. 251; Succession of Derigny, 133 La. 382, 63 So. 56, and, especially, Martinez v. Wall, 107 La. 737, 31 So. 1023.”

Considering the allegations of the petition of relators to have the Commercial Germania Trust & Savings Bank of New Orleans appointed as curator to take charge of “the estate of Francis Lory, Jr., absentee,” in the year 1914, it is apparent that relators were misinformed, and were in error as to their rights under articles 77 and 78 of the Civil Code, and that the judgment rendered on the petition of relators, appointing the bank curator for Francis Lory, Jr., absentee, is erroneous on its face.

Relators are not seeking to set aside the judgment of partition they provoked. The only relief prayed for by relators is to be placed in the absolute possession of the estate of the decedent, including the proceeds of the part placed under the care and control of the bank, acting in its capacity as curator for Francis Lory, Jr., absentee.

It is clear that there is no one to contest the relief prayed for by relators but the absentee himself, and, should he return, his rights are fixed and protected by law.

It is therefore ordered that a writ of mandamus issue herein to Hon. M. M. Boatner, judge of division B of the civil district court for the parish of Orleans, directing him to sign the judgment of absolute possession submitted to him by relators in the matter entitled “Succession of Mrs. Sarah Butler, Widow by First Marriage of Joseph Lory, Widow by Second Marriage of Francis Lory, Sr.,” No. 171389 on the docket of the civil district court.

BRUNOT, J., dissents.  