
    
      CARRABY vs. CARRABY.
    
    A woman cannotbecu-1 absentee*
    Appeal from the court of probates of the parish and city of New-Orleans. J
    
   Martin, J.

delivered the opinionof thecourt.

The appellant complains that his claim to the curatorship of the estate of his nephew, an absentee, was disregarded, and the absentee’s sister preferred.

He opposed the appellee’s claim on account of her sex, and the only question presented to us, is whether a woman may have the curator-ship of an absentee’s estate, of whom she is the presumptive heir.

The Code, article 50, requires that, in the appointment of the curator of an absentee’s estate,—the wife be preferred to the presumptive heir—he to other relations—they to creditors, and these to strangers. Provided however, that such a person be possessed of the necessary qualifications; ayent les requises.

The qualifications, or qualites, spoken of in the proviso we take to be, the masculine sex and theage of majority; we can hardly think of any other.

Women cannot perform any civil function, except those which the law especially declares them capable of exercising, id. 25.

They may be tutrixes of their minor children or grand children; they may be execu-trixes; curatrixes of their absent husband’s estate.

The exercise of a right or power over the property of another, not conferred by him but by the law, we take to be a civil function"

By the Roman law, Fcemince ab omnibus officiis publicis vel eimlitbus remotes sunb L. 2ff.de reg.jur.

It is true the presumptive heir has an inter, est in the good management of the estate, and the appellee’s counsel has concluded, that as she may manage her estate, she may manage one in which she has an interest. She has no vested right in the estate during the life of the absentee, except the share of the profits which the heir may have when sent into posses* J 1 sion in the absence of the latter-^the curator of the absentee’s estate manages an estate not . . his own.

It is objected that women may be sent into provisional possession of an estate. This is an exception to the general rule, for they ex* ercise a power on an estate not their own, which the owner did not give, but the law con* fers. But the law presumes the absentee, in gome manner, to be dead 5 bis will is to be opened j his instituted, repels the presumptive heir, if not a forced one. The heir sent in pos* session has a vested interest in a part of the pro* fits at first, which gradually increases, and final* ly absorbs them all. The civil Code requires the curator of the estate of an absentee to pos* sess, besides the qualifications which entitle him to a preference, those which enable him to exercise the office,

A doubt has been suggested as to the juris* diction of this court, the estate being of the value of $1500 and the profits or interest of the parties, the commission, are below $300, But we have deemed it our duty to respect the le. gislative construction of the constitution, in the article of the Code of Practice,

D. Seghers for plaintiff—H. R, Denis for the defendant,

It is therefore ordered, adjudged, and de-dreed that the judgment of the court of pro- , bates be annulled, avoided, and reversed, and that Etienne Carraby be appointed curator of Leufroy Carraby, the absentee; the appellee paying costs in both courts,  