
    DUNLAP vs. BAILEY, EXECUTOR, &c.
    Western Dist.
    
      October, 1834.
    APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF RAPIDES.
    Where an executor is appointed, and directed in the will, to sell the property of the testator, and deliver the residue of the proceeds to the heir, he is authorised to take possession and sell it, without the seisin of the estate being expressly given.
    
    The plaintiff, as attorney of the absent heirs of Jules Belot, deceased, applied to the judge of probates, for the parish of Rapides, for an injunction to restrain the defendant, as testamentary executor, from selling the property of said decedent, on the ground that he had no seizin of the property of the estate, given to him by the will. The petition alleges, that the executor has taken illegal possession of the effects of said estate, and has sold part of it, without any order or authority of court, and has advertised the real estate and slaves for sale, also without authority. The petitioner prays, that the executor be enjoined frjpm proceeding any further, or from exercising any right of possession or disposal of said property, until he gives bond with security, for the faithful administration thereof.
    On the first of November, 1833, Jules Belot made his olographic will, in which he declares, “ after the payment of ,.... my debts, which will be operated by the sale of my house ,* '¿a^d'lot, and all the goods and moveables that I may own at my'defifNi give unto my father for his life-time, my negro ¡.girl Vinia, ,\$ho is to be free at his death; ” and any balance
    
      arising from the sale of his property, after paying his debts, he bequeathes to the foundling hospital in Paris, &c. His father haying died before him, the testator, on the 12th September, 1833, made the following codicil to his will:
    
      “ My father being dead, the dispositions in his favor are by this subsided, but it is my wish, that the balance of the clauses of the said will, remain the same as heretofore; and to insure it the better, I nominate Mr. Wm. Bailey for my testamentary executor, and beg of him to make his best exertions, to send to my daughter the whole of my property, or to send for her in France, and put her in some respectable house of this country, where she can get a good honest education, and for this last service, that I will receive of him, I give him ten per cent., on every net sum that will be collected out of my estate.”
    The will was admitted to probate, on the 8th July, 1834. The executor proceeded to take possession of the property, and dispose of it under the will. The plaintiff, as attorney for the absent heirs, was of opinion, the executor was not entitled to the seizin, by the terms of the will, applied for an injunction, which was refused by the probate judge. The plaintiff appealed from the order of refusal.
    
    The only documents and evidence, upon which the proceedings were had, was the petition and copy of the will. The probate judge granted the appeal.
    The case was explained by Mr. Dunlap, in proprriii person&, and by Mr. Dunbar, for the defendant.
   Martin J.,

delivered the opinion of the court.

The plaintiff being attorney of the absent heirs of Belot, is appellant from the decision of the Court of Probates, refusing to enjoin the defendant from exercising any right, or act of possession, in relation to the property belonging to the estate of Belot, until he shall first give bond and security for his faithful administration.

The injunction was prayed for on a suggestior will does not give the seizin of the property of t1 the executor; and that the latter had, notwithsh want of authority, advertised the property for sale, and was about to sell it, without first obtaining the order of the Court of Probates, for that purpose.

Where an ex-eoutor is apreeled*1, in'*1 the propertyS of the testator, and deliyer th© PGSidii© of the proceeds £ authorised to take possession suid sell it with." out the seizin of

It is admitted on the part of the defendant, that the property was offered for sale, without any order of court, but that this was an error which has since been cured.

The testator directs, that the payment of his debts be effected by the sale of his house and lot, and of his goods. He bequeathes to his father a life estate in a slave, who is to be emancipated after his death. Whatever is left from the sale of his estate, after the payment of his debts, he gives to a hospital in Paris, in France, for the benefit of his daughter, whom he left there.

The father dying first, the testator by a codicil appointed the defendant his executor, and directed him to send his property to his daughter.

& aPPeal's from the will, that the testator made his daughter his universal legatee, and directed his executor to transmit the residue of his estate to her. This could not be effected in any other mode than by a sale of the property. It could not be made in kind as respects tbe house and lot, or the slave, A even if the latter be not entitled to her freedom. The executor could not execute the will, without taking possession of the property and selling it, when the heir was in France. x i o' ’ The Court of Probates did. not, therefore, err, in refusing the injunction.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Probate Court be affirmed, the appellant paying all posts,  