
    No. 1379.
    Succession of Sylvester Romero.
    The discretion oí aDistrict Judge exercised in tlie appointment of a succession administrator, as a rule, willnot be lightly interfered with, particularly where it appears that there arc minors concerned; that the heirs of age are from different marriages; tliafc there are debts due by and to the succession; that the heirs of age and the widow do not agree, and that there exists property which must be under the control of one person for its preservation, and notes, the payment of which may have to be judicially enforced. In such a case the preference should be given to the heir of age present, over the widow, although she may be entitled to the usufruct of the share of the deceased in the community and be the tutrix of the minor heirs, the issue of her marriage with the deceased.
    PPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.
    
    
      L. O. Hacker for Plaintiff and Appellee:
    1. Where it appears that there are debts, and some of the heirs are minors and some of age, a succession should be provided with an administrator. 2 An. 412; 4 An. 561; 10 An. 534; 6 L. 212.
    2. A tutor may administer a succession falling to his wards, when there are no debts and all the heirs are of age and present, or when there are debts, and the the creditors demand it, an administrator should be appointed. C. 0.336, 337; 12 R. 41; 6L. 212.
    3. Act 25 of March, 1844, giving the usufruct to the surviving spouse is not inconsistent with the law requiring the appointmentof administrators; andthe beneficiary heir of age may claim the preference, 5 An. 27.
    4. Articles 336 and 337> C. Q., providing for the administration by the tutor of the minor’s estate, refers to successions where all heirs are minors, but it does not give the tutor the right of administration over an estate where most of the heirs are of age and demand an administrator. 11R. 67.
    5. The law which incapacitates a minor capacitates his tutor in proportion, and he cannot exercise a greater authority Shan his ward could, if he were of age.
    
      Benoudet, Poster & Broussard:
    
    1. While the beneficiary heir is preferred as the administrator of an estate, yet his appointment, like all others, depends on whether from the facts, circumstances and conditions of an estate an administration is necessary.
    2. When an estate owes no debts, or trivial ones, which the parties interested are willing and ready to pay, the appointment of an administrator is unnecessary. See. 29 An. 572, Burns vs. Van Moan; 36 An. 702, Succession of Welch; 33 An. 1099 ;3S An. 7l6.¡
    3. When the facts and circumstances in.the record show that the estate owes no debts and that all the property thereof is easily susceptible of a partition, which all interested desire, the application for the administration of the estate will be rejected; in such cases the kny points to the action of partition as the proper and cheaper remedy. See same authorities as above; also 3 An. 502.
    4. The discretion rested in the judge to appoint whether there be'debts or not, is governed by the facts elicited before him; in each case he must decide from the facts shown him whether he can or ought to appoint. If there are no facts why he should appoint, and many circumstances why he should not, then he has no discretion, and must reject the application. See 3 An. 502, Succession of Story.
    
      5. An administrator has no right or power to partition property of an estate; his-sole duty is to pay the debts and then turn over the residue of the property to those entitled to it. See Manning’s Unreportod Cases, p. 216; Iluey vs. Huey.
    6. From spoliation, useless expense and extravagant outlays in litigation, without cause or necessity, the law protects the property of a succession.
   The opinion of the court was delivered by

Bermudez, C. J.

This is a contest for the administration of the succession of the deceased.

From a judgment appointing one of his sons, by a first marriage, his widow, opponent, appeals.

Sylvester Romero married three times. He leaves eleven children, four from the first marriage, one by the second and six by the third, two of the latter being minors, represented by their mother and tutrix, his third wife, who survived him. ■

The application for the administration was made by Cleveland Romero; but opposed by the widow on two grounds.

1. That there are no debts, or, if any, that the same are insignificant; that she is willing and prepared to pay the same, and that consequently it is unnecessary to entail on-the succession the costs, charges and burden of an administration.

2. That all the property left by the deceased being community, she, as survivor and tutrix, is entitled to retain possession of the same, at least as usufructuary.

Eventually she claims a preference over the applicant.

It sufficiently appears that there exist claims against the estate, as well by some of the children of ¿he first marriage as by other parties, for an amount which it is not easy presently to specify, but which seemingly exceed §1500; that there are debts due the deceased, represented by mortgage notes for more than §2500, which are part of the proceeds of property sold which composed the community existing during the first marriage.

It is also claimed that the property which the opponent asserts to belong to the community between her and the deceased, does not belong to that, but to the two previous communities.

It also appears that the deceased has claims to the possession of certain property acquired by him at tax sales, which is still subject to redemption.

The inventory shows assets, movable and immovable, appraised at over §15,000.

The readiness and ability of the widow to pay has not been proved. The reverse has been established.

It is evident that it is necessary that some fit person be appointed to represent the succession, widow and heirs, not only to take possession and keep the movable property and the notes, but also to assist and vindicate its rights for the collection of the notes, and the recovery of property purchased as stated.

The heirs and the widow do not agree among themselves, and there are two minors who are beneficiary heirs.

The succession is not presently in such a condition that the heirs can -be put in possession and proceed to a judicial partition of its assets, whether in kind or otherwise.

Whatever the rights of the widow be, as usufructuary and as tutrix, they can not be asserted to prevent a liquidation of the succession which, on the contrary, is required first to take place before she can be put in possession in either or both capacities.

She is not entitled to the preference claimed.

The law distinctly provides that, in the choice of an administrator, the preference shall be given to the beneficiary heir of age, and present in the State, over any person. R. O. O. 1042 and 1121.

This view of the matter is justified by precedents. 14 An. 641; 7 R. 24; 6 La. 212; 12 An. 610; 5 An. 27; 35 An. 127; Succession M. O. Gaines, 42 An.-, recently decided.

We think that the District Judge, whom the law vests with great discretion in such matters, not lightly to be interfered with, has properly exercised it in making the appointment complained of.

Judgment affirmed.  