
    
      SMITH vs. WILSON.
    
    APPEAL PROM THE COURT OP THE THIRD DISTRICT, THE JUDGE THEREOF PRESIDING.
    Claims against an executor for the payment of the testators debts, are ex clusively cognizable before the Court of Probates, where the succession is opened.
    The plaintiff was a partner of the defendant’s testator, in a plantation and slaves, situate in the parish of West Baton Rouge, wherein the deceased was domiciliated, and where his succession was opened. The defendant, a resident of the State of Mississippi, was appointed his executor, and, in concurrence with the plaintiff, caused the partnership property to be sold, under an order of the Court of Probates.
    The petition set fourth, that the proceeds of the sale were not sufficient to pay the plaintiff’s claim. That the defendant had administered upon, and received the whole of the testator’s estate, in the State of Mississippi — was largely indebted thereto, and had property belonging to the succession, within the jurisdiction of the court, against which, and the property of the defendant, a writ of attachment was prayed and sued out. The defendant excepted to the jurisdiction of the court, which plea was sustained, and the plaintiff appealed.
    
      Lobdell, for appellant:
    I. The exception of defendant was wrongfully sustained in dismissing the cause for want of jurisdiction. — C. P. art. 
      122, 126, 144, 334, 925, 983.-~Singletary vs. Singlet ary, March 7, N. S.
    Eastern District,
    March 1831.
    Downs, contra:
    The District Court has no jurisdiction of a suit for money against a succession administered by an executor.-C. P. art. 924, 983.-M'Donough vs. Johnson's exor., 2 Martin, N. 5. 287.-Miles vs. Ford, Thid, 439.-Tabor vs. Johnson et al. 3 Martin, N. 2. 674.-Po~jret vs. Vesser, 8 Martin N. 5. 595.
    Claims against an executor for the payment of the testators debts are exclusively cognizable before the Court of Probates where the succession i~ open-eu.
   MaMews, J.,

delivered the opinion of the court.

This is a suit instituted by attachment against the executor of a succession, which was opened in East Baton Rouge. The will of the testator was there probated, and letters testamentary grwited by the proper authority. The plaintiff had been in partnership with the deceased in a tract of land and some slaves, and concurred ~vith the executor in having the whole of this property disposed of at probate sale. He now alleges, that the procedes of that sale are not s'ufficient to pay the debts of the succession, and that it owes him five thousand dollars, &c.

The defendant, in answer to the petition, excepted to the jurisdiction of the~District Cour-this exception war sustained, and the plaintiff appealed.

The suit does not appear to be personally against the defendant, but as executor, to obtain ji~dgment decreeing the estate of his testator to be responsible for the claim of the plaintiff; for no divestava is alleged. The proceeding considered in this point of view was corarn non judice, and the defendant's exception properly sustained.-&e Code of Practice, art. 924, no. 13 and 983.-According to these articles, it is evident that this suit is exclusively cognizable before the Court of Probates, ~xhere the succession was opened. But a difficulty occurs, opposed to procecling in the ordinary and legal way, in consequence of the executor residing out of the jurisdiction of the State. ~t is, however, not for us to remedy this inconvenience. Perhaps the defendant might be destituted of his office, (as provided for in relation to tutor) and administration, granted to another fit person, with the will annexed.-Of this, however, we give no opinion.

It is, therefore, ordered, &c. that the judgment of the District Court be affirmed with costs.  