DOUGLASS AND WIFE vs. EDWARDS AND WIFE, 9 La. 234

Mathews, J., delivered the opinion of the court. This suit is brought by Douglass and his wife, as guardians or tutors of the minor children of Henry Crabb, deceased, formerly the husband of Mrs. Douglass, against the defendants, as representing the estate of David Barrow, deceased, in their capacity of tutor and tutrix of a minor child of said Barrow and Mrs. Edwards, the latter being his wife during his lifetime. Exceptions to the rights and authority of the plaintiffs to maintain the present action, are found in the answer of the defendants.

Amongst these exceptions is one, denying the character (assumed by them in their petition) as tutor and tutrix, &c. The court below sustained this plea, and gave judgment of non-suit, from which the plaintiffs appealed. They appear to be absentees, in other words as having no domicil or residence in this state. The suit is brought for the purpose of compelling the defendants to render an account of the administration of D.

Barrow, who acted as executor of the last will and testament of Henry Crabb, and to obtain a judgment for the balance of the succession of the latter, which remained in the hands of the former at his death. The evidence offered in support of the plaintiffs’ right to claim the account and judgment as prayed for in their petition, is an order or decree of the Court of Pleas and Quarter Sessions of Davidson county, in the state of Tennessee, by which they are appointed guardians of the interests of the minors of H.

Crabb, deceased, for a special purpose, viz : to protect the rights of said minors, in a suit depending in Louisiana, wherein the widow and heirs of H. Crabb, deceased, are plaintiffs, against David Barrow, &c.

Now as the present defendants represent, or are supposed to represent Barrow, and 'the suit being in substance, though not in name, the'one referred to in the decree of the court of Davidson county, perhaps the mistake of names would not invalidate the power granted by the decree of that court, if it conferred full authority, given in legal form, to the plaintiffs, to represent the'minor children of Crabb, in all things relating to his succession, as tutors, clothed with full power and authority allowable to them in such capacity.

But this is not the case in the present instance ; they are nominated for a special purpose, and by what power legally vested in the court which' appointed them to office, we do not know. The circumstances in the present case,- do not bring it under rules as laid down in that of Berluchaux vs. Berluchaux et al., as reported in 7 Louisiana Reports, 539 and 545. See also the case of Chiapella vs.

Coupray, 8 Louisiana Reports, 84. jn tjj0se cases we held, that a tutor or guardian, legally 7 0 1 ° J appointed to a minor, according to the rules and forms of a foreign state or government, could reduce to possession the property of the minor, situated in this state, by appointing an attorney for that purpose, and dp all things here appertaining to the interests' of the pupil, as if the tutor had received his appointment in pursuance of our laws, distinguishing the office of tutors or guardians from-that of executors and other administrators of successions.

From these last, it seems to us difficult to distinguish an administrator, appointed under whatsoever name or title, for a special and particular purpose, in relation to a succession. Such administrator, although denominated a tutor, does not possess the general and imposing power and authority conferred on tutors, appointed to protect the persons and property of their pupils, in every thing relating to their comfortable existence and education, and pecuniary interests. If an affirmation of the judgment had a tendency, finally to defeat any just claims of the plaintiffs, we would be very reluctant to sanction it.

The only-inconvenience occasioned by the non-suit, is delay, leaving the parties claiming rights, to pursue them in a legal manner, not hard to be discovered. One of the plaintiffs, the late widow of Crabb, claims in her own right, one half ■ the sum which may be owing by the succession of Barrow, belonging to her as a part of the matrimonial acquests and gains, acquired during' her marriage with • her first husband, and the counsel for the plaintiffs contends, that in this respect she'ought not to have been non-suited. We cannot consent to this proposition.

The action is instituted to compel an account and settlement of the 'administration of Crabb’s executor: it relates to the management of the succession of the former, and although it may be blended with the rights and claims of the surviving partner, ‘of acquests and gains, the division and separation of these rights and claims can only regularly take place, after liquidation and settlement of the whole estate, as left at the death of the husband. The executor or his representatives, ought' not to be compelled to render two accounts, relating to a single administration. ' .

But if the power granted to guardians of minors, by the decree of a court of another state, confers full authority on them, in legal form, to represent the minors • iii all things relating to their propei’-tyhere, such de-, füíT evidence of authority in the guardians to act. To compel an accountLlfo°1 the administration all the parties tyUSbefore°Pthe ^ceaseil partner properly An executor ough^ol“ compelled to rate 1 accounts, t-iiasuccession.a" It is, therefore^ ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.