
    Succession of Dupuy.
    Where the legatees named in a testament die before the testator, and there are no debts' to pay, the appointment of an executor becomes inoperative. The appointment of an* executor is a mandate, which, under our law, is limited to the execution of the legacies contained in the will, and to the payment of the debts, and the powers which it gives are to he strictly construed.
    The appointment of an executor with the origin of the succession, is not a substantial testamentary disposition, independent of any other.
    The seizin of an executor is a fiction of law, which does not interfere with the legal possession of the heir.
    The admission of a will to probate, and the order given for its execution, are mere preliminary proceedings, necessary to the administration of the succession; hut they do not amount to a judgment binding on those not parties thereto.
    from the First District Court of New Orleans, M’Henry, J.
    
      Buisson, for the appellant.
    
      Grddhe, contrit.
   The judgment of the count was pronounced by

Rost, J.

The late George Dupuy died in France, sometime in December 1848. During his previous residence in this city, he made an act of last will containing but one disposition, a universal bequest in favor of his brother Joseph Dupuy. He appointed Antoine Michoud his executor. On the next day he made a codicil, ordering his executor to emancipate his slave Betty.

Soon after being informed of the death of the testator, the executor named probated the will and the codicil, and took out letters testamentaiy. He caused an inventory and appraisement of the property of the succession to be made, when a suit was instituted against him by the .appellee, one of the legal heirs of the deceased, praying for the rescisión of all these proceedings, and for the setting aside of the will and codicil, on the ground that the legatee therein named had both departed this life before the death of the testator, and that there was no longer any will to execute. In the petition presented by him to that effect he contends that, the succession of the deceased ought to be administered as a succession db intestato, and prays to be appointed curator to the absent heirs.

The executor answered that the appointment of a testamentaiy executor with the seizin is, per se, a testamentaiy disposition which confers upon the executor the right of administering the succession, and of receiving a commission at the end of his administration; that, as long'as the seizin is not taken from him by .the heirs in the mode pointed out by law, no part of the succession can be considered as vacant; and finally, that the appointment of a curator to the absent heirs could not divest the executor of his trust, nor of his right to administer the succession.

The district judge gave judgment in favor of the appellee, annulling the order confirming Michoud as executor and setting aside the letters testamentaiy. A suspensive appeal was taken from that judgment. Sometime after the court appointed the plaintiff curator to the absent heirs, as prayed for by him. Another appeal was .taken from the decree making that appointment.

The appointment of an executor with the seizin is not, as alleged, a substantive testamentaiy disposition, independent of any other. 'The functions of a testamentary executor are a mandate, differing from other mandates in this only, that it begins at the death of the principal when all other mandates end. That mandate, .under our laws, where it is not enlarged by the will, is limited to the execution of the legacies contained in the will and to the payment of the debts, .and the powers which it gives are to be strictly construed. Delisle, Commentary on Art. 1024 Nap. Code.

There being no testamentary dispositions to execute, and no debts to pay, in Shis case, the appointment of the defendant as executor has become inoperative.

It is well settled that the seizin of the executor is a fiction of law, which does not interfere with the legal possession of the heir; and also that, the admission of a will to probate and the order given for its execution are only preliminary proceedings necessary for the administration of the estate, and do not amount to a judgment binding on those who are not parties thereto. Pothier, Dispositions Testamentaires, art. 2, ch. 5, p. 360. Succession of Duplessis, 10 Rob. 194. We are of opinion that there is no error in the judgments appealed from.

Judgment affirmed.  