
    State v. Judge of Probates for the City of New Orleans.
    Where a copy of a foreign will is presented to the judge of probates in this State, togetheo with authentic evidence of its having been duly proved and ordered to be executed in the country where it was received or made, it is the duty of the judge to order the registry and execution of the will.
    The registry and execution, of a foreign will may be made when the case requires it, without any appointment of administrator or dative testamentary executor.
    [487] Where one of several executors of a foreign will, duly proved and ordered to- be executed, presents himself for letters testamentary under the will here, and the case is a proper one, he should be recognized and authorized to act by the court of probates, under its control and supervision.
    The judge of probates is in no case authorized to appoint a dative testamentary executor, until the-executor named by the will has had an opportunity to accept or refuse the trust
    An application fox- a mandamus.
    This case comes up on an application for a mandamus, directing the judge of probates for the city and parish of New Orleans to emegister and order the execution of a foreign will.
    P. L. Sloan petitioned the judge of probates to enregister and make executory the last will and testament of Jane Sloan, deceased, late of Scotland, dxxly proved according to the laws of that country, and in which he is named, one of the testamentary executors, accompanied by the powers of attorney from the other heirs, himself being one. He shows that there is property of the deceased within the jurisdiction of the court, and prays that letters testamentary he granted to him.
    
      The probate judge made an order at the foot of the petition, stating that " being satisfied the will of Jane Sloan, deceased, had been duly proved before a competent judge where said will was received; that the testatrix had appointed several testamentary executors, giving to a quorum of them only, the authority to execute the will; that with the exception of the petitioner, all the other executors are abroad; that there are absent heirs of the deceased. : Orders, that the last will and testament of Jane Sloan, deceased, be registered; that the petitioner, Peter Lawrie Sloan, be, and he is hereby appointed dative testamentary executor of the last will and testament of said Jane Sloan, deceased; and C. Boselius, Esq., attorney and counsellor at law, be and he is hereby appointed attorney to represent the absent heirs of said deceased.”
    The petitioner being dissatisfied with the above order, refusing letters testamentary as he had prayed for, applied to this court for a mandamus.
    A rule was taken on the judge of probates to show cause why [488] a mandamus should not issue directing him to grant Tetters testamentary to said P. L. Sloan, in the usual form, and not as dative testamentary executor.
    The judge showed for cause:
    I. That he has rendered an order on the petition of P. L. Sloan, which in
    his opinion is such as the justice of the case requires, and is as necessary for the maintenance of Ms jurisdiction. ' ,
    II. That as long as this order is unappealed from, the supreme court cannot maintain jurisdiction in the premises. Constitution of Louisiana, art. 4, sect. 2.
    And for further answer, if any be necessary, this respondent says:
    1. That P. L. Sloan cannot derive under the confirmation of this court the power to execute alone the will, the testatrix having confided this trust to a “quorum” of her several executors.
    2. That the said P. L. Sloan cannot be considered as forming by himself this “ quorum," even with the proxies of his foreign co-executors, because by so requiring a quorum of her executors, the testatrix wanted them to consult each other, in order that through their united action her estate might be better administered.
    3. That the law requires the dismissal of an executor who absents himself for a time exceeding the term of his administration, and a fortiori cannot be made to sanction the confirmation of an executor or executors whose actual and permanent domicil and residence are in a foreign country; for this reason the powers of foreign executors cannot be recognized by this court; La. Code, 1149, No. 2 ; Id. 1014.
    4. That this last rule prevails as to tutors, administrators, curators, &e.; La. Code, 1013, 1014; Id. 351; Code of Practice, 1037; and cannot [489] and ought not to be construed in a more favorable light as regards foreign administrators.
    5. That the very legitimate son in whose favor is the maxim, le mort sadsit le vif, is prohibited by law, whilst absent, to administer in this State the very estate of his father, accepted by him under the benefit of inventory, unless his agent have a special power to accept or reject this succession,| Sc,., (La. Code, 1038,) and unless said beneficiary heir gives security, &c. Id. 1041.
    6. That the court of probates would be without jurisdiction over the exec utors confirmed by it, Code of Practice, 997, were they living and residing in foreign countries, they being without the reach of its mandates; mandates which are deemed necessary for the maintenance of the rights of our fellow citizens as creditors or heirs ; Oode of Practice, 997 to 1012, &c.; whence follows the authority of this court to appoint a dative testamentary executor. Code of Practice, 1037; La. Code, 1671.
    7. It has become a general doctrine of law, recognized both in. England and America, that no suit can be brought by or against any foreign executor in the courts of the country, in virtue of his foreign letters testamentary; and that new letters of administration must be taken out and new security given, according to the general rules of law prescribed in the country where the suit is brought. The authorities to this point are now exceedingly numerous and entirely conclusive. Story’s Commentaries, Conflict of Laws, sect. 513 and notes.
    8. That the new administration is made subservient to the rights of creditors, legatees and distributees resident within the country: and the residuum is transmissible to the foreign country only when the final account has been settled in the proper-domestic tribunal upon the equitable principles adopted in its laws. Same authority as above, sect. 513 and notes.
    9. Persons domiciled and dying in foreign countries are often deeply indebted to creditors living in other countries, in which they have personal as-[490] sets. In such cases, it would be a great hardship upon such creditors to allow a foreign executor to withdraw those funds without the payment of such debts, and thus to leave these creditors to seek their remedy in the domicil of the foreign executor or administrator, and perhaps there, meet with obstructions and inequalities in the enforcement of their own rights from the peculiai'ities of the local laws. Same author, sect. 512.
    Strcnobridge, for the petitioner,
    argued to show that the answer of the judge was insufficient, and that the prayer of the petitioner should be granted.
    
      BoseUus contra.
   Buixard, J.

delivered the opinion of the court.

In this case a rule was taken on the judge of the oourt of probates for the city and parish of New Orleans, to show cause why a mandamus should not issue commanding him to grant letters testamentary in the usual form to P. L. Sloan, one of the executors named in the last will and testament, of Jane Sloan, late of Scotland, deceased, and not as dative executor. It appears that the will was made in Scotland, and had been there regulaily admitted to probate and its execution ordered.

The answer of the judge to the rule covers a much broader ground than the rule itself; and all that part of it which concerns the authority of this court to proceed by mandamus, instead of appeal, may be passed over as presenting questions already settled by this court in tbe case of The State v. The same judge, 14 La. Rep. 478.

Upon tbe sole question, which this case presents, to wit, the propriety of appointing a dative executor, instead of reoognizing the authority of one of those named by the will, the judge answers :

1st. That P. L. Sloan cannot derive under the confirmation of this court the power to execute alone the will, the testatrix having confided this trust to a quorum, of her several executors.

2d. That the said P. L. Sloan, cannot be considered as forming by [491] himself this quorum, even with the proxies of his foreign co-executors, because by so requiring a quorum of her executors the testatrix wanted them to consult each other in order that through their united action her estate might be better administered.

3d. That the law requires the dismissal of an executor who absents himself for a time exceeding the term of his administration, and a fortiori cannot sanction the confirmation of an executor whose actual and permanent residence is in a foreign country; and the powers of foreign executors cannot be recognized by this court.

4th. That this last rule prevails as to administrators, curators, &c., and ought not to be construed in a more favorable light as regards foreign executors.

5th. That even an absent forced heir cannot administer while absent, the estate of his father accepted under benefit of inventory, unless by an agent who has a special power to accept or reject successions, and unless he gives security.

6th. That the court of probates would be without jurisdiction over executors, confirmed by them were they living and residing in foreign countries; and consequently beyond the reach of the mandates and have the authority of the court of probates to appoint a dative testamentary executor.

The other part of the answer is an argument in support of the ground assumed by the judge upon general principles of the conflict of laws and growing out of public policy, and we are referred to Story’s Conflict of Laws, 513 and notes.

If the petitioner had simply presented a copy of the will together with authentic evidence of its having been duly proved and ordered to be executed in the country where it had been received or made, it would have been the duty of the judge, in our opinion, to order the registry and execution of the will according to articles 1681 and 1682 of the La. Code. Such an order is equivalent to a new probate in this State, which is wholly independent [492] of the question, whether letters testamentary shall issue and to whom. There may be cases in which no administrator is required in the interest of creditors or legatees, and the registry of the will is asked merely to complete evidence of title to property held under the will. In such a case we cannot see the necessity or propriety of coupling with such order for registry the appointment of an executor not asked for, much less an attorney for absent heirs. If after the registry and order of execution, one of the persons appointed executor by the will comes forward and asks for letters testamentary it will be necessary to inquire whether it is a proper case for the appointment of. a dative executor. To this effect was the decision of this court in the matter of Ramsay’s will. 13 La. Rep. 221.

The question presents itself in this case, whether, when one of several executors appointed by a foreign will comes forward and asks for letters testamentary, it be proper to refuse his prayer on the ground that he alone is not authorized to act by the will, and whether it be a proper case for the appointment of a dative testamentary executor. The last part of this question seems to be sufficiently answered by the article 1671 of the La. Code, which declares that if the testator has omitted to name a testamentary executor, or if the one named refuses to accept, the judge shall appoint one ex officio. We have no hesitation in saying that in our opinion, the court of probates has no authority to appoint a dative testamentary executor, until the executor named by the will has had an opportunity offered him to accept or refuse the trust. If he accepts, he is bound to administer under the supervision of the court of probates, to comply with the laws of Louisiana in relation to the payment of debts and legacies, and to render his account to the court by whom his authority has been confirmed. One of the executors appointed by the will of Mrs. Sloan asks for letters testamentary, and the judge gives another reason for not [493] granting his prayer, to wit, that he alone is not authorized by the will to act. without consulting his co-executors, of whom a quorum is to govern. The will is not before us, but admitting such to be its construction, it does not follow that when one of the executors comes forward and signifies his willingness to accept the trust confided to him by the testatrix, he is to be repelled on the ground that he alone is not authorized to administer, and that the court has at once a right to appoint a dative executor. Non constat but that the other executors or a majority of them, will also come forward and accept the trust; and when it is ascertained that they do not, it will be time enough to inquire whether one of the executors may not alone administer under the guidance and control of the court of probates. In the mean time, we think, he ought to be recognized as executor. It does not appear whether the executors have the seizin of the estate by the will; if not, the heirs are entitled at once to take the estate into their hands on furnishing a sufficient sum to pay debts and legacies.

Upon the whole we conclude, that the court erred in appointing a dative executor and an attorney of absent heirs, before the necessity of such an appointment was shown; and we are of opinion that the court ought to have recognized the petitioner as one of the executors appointed by the will of the testator, and to have granted him letters testamentary as such.

The appointments of dative executor and attorney for absent heirs are therefore annulled, and it is further ordered that the rule be made absolute, and that the oourt of probates recognize P. L. Sloan and grant him letters testamentary, as one of the executors appointed by the will of Jane Sloan, de 'ceased, upon his complying- with the requisites of law.  