
    No. 328.
    Thomas Gooch et al. v. John Lee Gooch et al.
    An lioir ivlio lias provoked tlie appointment of liimself as provisional administrator of the estate of his mother, on the allegation that the succession required immediate admin istration, can not he held and treated as an intemneddler in the estate.
    from the Tenth Judicial District Court, parish of Caddo. Levisee, J.
    
      Nutt & Leonard, for plaintiffs and appellants. B. J. Looney, Public Administrator, for appellees.
   Wyey, J.

The question presented for adjudication in this case is, can a provisional adininistrator who has collected funds belonging to-the estate, and failed to pay them over to the heirs, be treated as an intermeddler, and the property which he has transferred to a third party be subjected to an hypothecary action on account of the mortgage accorded to minors against intermeddlers ? Bevised Code 3315. The court a qua concluded that the provisional administrator could not be so treated, and gave judgment accordingly.

The plaintiffs appeal. They allege that their mother Martha Gooch died in 1859, while they were minors, leaving certain property, particularly three notes for $1200 each, due by Mrs. Martha Gibbs, of Mississippi. That their brother John L. Goooh collected these notes and has never accounted therefor, thereby becoming indebted to them for the amount claimed in the petition. That they, being minors and unrepresented by a tutor, acquired a legal mortgage on the property of said John L. Gooch, because he intermeddled in the succession of their mother and interfered in the administration of property belonging to them; that said mortgage affects the lot of ground described in the petition, situated in the city of Shreveport, and now possessed byr the succession oí James Coulter, because'the same was owned by the-said John Lee Gooch at the time of said intermeddling in the administration of their property, and that its subsequent transfer to Simms and to Coulter did not remove the incumbrance. The public administrator who represents the succession of* Coulter contends that the lob in question is not affected by the mortgage :

First — Because John Lee Gooch was provisional administrator at the time he collected the claim; besides, he is one of the heirs, and he ought not to be treated as an intermeddler by reason of his office and heirship.

Second — Because the lot did not belong to John Lee Gooch, but to-his wife Matilda E. Gooch, who acquired it in 1863, the deed contain- ■ ing the following clause:

“It is expressly understood that this purchase is made with Mrs. Gooch’s own separate funds; in this, that it is replacingher paraphernal property alienated by her husband.”

The public administrator contends that Simms acquired in good faith the ,lot from Matilda E. Gooch, who held by a title ostensibly valid, and he subsequently transferred the said lot to James Coulter. That, under the authority of Mercier v. Canonge, 8 An. 37, said lot in the hands of innocent third persons would not be affected by a tacit mortgage against John Lee Gooch who, at most, only had a covert or equitable interest in the property, the ostensible title being in his wife.

We deem it unnecessary to decide this point, because the first objection, in our opinion, disposes of the ease. We think the provisional administrator was not an intermeddler.

John L. Gooch, one of the heirs, Applied to the court to be appointed provisional administrator, representing that the succession of his mother .required immediate administration; that it consisted mainly of promissory notes due by a person residing in Mississippi, and it was to the interest of all the heirs that the money be collected immediately;, “that it will be dangerous to went'the delay of the time prescribed by law for the appointment of an administrator or curator, and that for this ptmjjose alone he be appointed provisional administrator.”

The court appointed him; he took the oath and gave bond for $6500, the inventoried value of the estate being $5950. Whether or not the court erred in appointing him is immaterial. He took the oath and gave the bond required by the judge, and in proceeding to accomplish the object of his appointment he can not be regarded as an intermeddler. Where it was necessary to preserve the estate, the judge had the right to appoint a provisional administrator, and the person so appointed will not incur the penalty announced in article 3315 Revised Code, where he merely performs the duty contemplated in the appointment.

It is therefore ordered that the judgment herein be affirmed, with costs.  