
    THOMPSON VS. HUTCHISS, TUTOR, ETC.
    ArrEAL FROM THE COURT OF PROBATES FOR THE PARISH OF WEST BATON ROUGE.
    The creditor of a succession, inherited by minors, under the tutorship of the administrator, cannot institute suit for the removal of the tutor for malversation in office. No one can institute this action, without being properly authorized by the Court of Probates, as required by the article 1016, of the Code of Practice.*
    The plaintiff alleges, that he is a creditor of the estate of one James Hacketf, deceased, now in the hands, and administered by the defendant, as tutor of the minor children of the deceased, and that he has an interest in the ultimate solvency of said estate. He then states, that for certain causes and conduct of the defendant, he is incapable, and cannot to be safely trusted with the administration thereof, and prays that he be required to render an account; that he be also removed from the tutorship of said minors ; and that the administration of said estate be taken from him.
    The creditor of a succession inherited by minors, under the tutorship of the administrator, cannot institute suit for the removal of the tutor for malver-sation in office. No one can institute this action without be-thomecTby' the ,Court of Pl:°" ed by the anide om-actice.
    The defendant averred, that the petition contained no cause of action ; and set up various matters in defence.
    After hearing the parties, the judge of probates rendered judgment., requiring the defendant to render an account; that he be also removed from the office of tutor; and that the under tutor attend, and cause another tutor to be appointed.
    From this judgment, after an unsuccessful attempt to obtain a new trial, the defendant appealed.
    
      Labauve, for the defendant and appellants.
   Marlin, J.,

delivered the opinion of the court.

The plaintiff states himself to be a creditor, and concerned in the solvency of the estate of Hackett, and suggests the malversation of the defendant, as administrator of the estate, and tutor of the minor heirs; prays that he may be ordered to render his account, and be dismissed from the tutorship. There was judgment against the defendant accordingly, and he appealed.

It is clear that the court erred in dismissing him from the tutorship, although it is the duty of every person to communicate to the Court of Probates, any fact within his knowledge, on which a tutor ought to be removed. Code of Practice, art. 1015. No one is authorized to institute the action for the removal, without being properly authorized so to do by the Court' of Probates. The article 1016, provides that the judge when made acquainted with such fact, if he think there be probable cause for removal, shall direct the subro-gated tutor or curator ad lites of such minor, to prosecute the removal; or if the said minor has no subrogated tutor or curator ad lites, he shall appoint a curator ad hoc to commence the action.

, In the present case, the record shows that there was a subrogated tutor, who intervened, and evinced his disapprobation of the removal of the tutor.

The plaintiff’s application ought to have been dismissed. We have refrained from examining, whether the judge of probates ought not to have ordered the subrogated tutor to institute an action for the removal of the tutor; because, it has appeared to us, that the plaintiff has not the right to demand the amendment of the judgment in this respect, and if he had, he has not exercised it. The judge of the Court of Probates needs not the expression of our opinion on the propriety of the tutor’s removal, who may, without it, order a suit to be instituted therefor, on the information before him.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be reversed, the suit dismissed at plaintiff’s costs, together with costs of appeal.  