DUNLAP vs. BAILEY, EXECUTOR, &c., 7 La. 368

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,