STAFFORD ET UX. vs. VILLAIN ET AL., 10 La. 319

Martin, J., delivered the opinion of the court. Nicholas Yillain instituted suit against his co-heirs, who are all the children of Celeste Rogers, deceased, by several marriages, for the partition of her’ succession. Josiah S. Stafford and wife, filed their opposition thereto. Mrs. Stafford, one of the defendants, was the daughter of the deceased ancestress; half sister, both of the plaintiff and her co-defendant, and sole issue of the second marriage of their common mother. An order was made referring the case to a notary for partition.

Stafford and wife filed their petition, alleging the nullity of the last will and testament of the mother, which was urged as the basis of the partition, and the illegal purchase by the mother of all the property in community which had existed between her and her deceased husband, Edward Kirkland, as well as of the separate property of the latter, and likewise the illegality of the decree homologating the account of the mother and tutrix of her minor daughter, Mrs. Stafford.

The petition then concludes with a prayer that the will, the purchase of the mother at the probate sale, and the decree of the Court of Probates, be anulled and set aside. To this petition the defendants pleaded the general issue. The order which had been made in the first suit, for the partition before the notary, was rescinded, and the suits were consolidated.

Where a will is in the mystic form, and it doe's not state in the superscription on the envelope, that the paper containing the will was either closed, sealed or presented by the testatrix to the vnotary, it will be considered as defective and null, as not possessing the formalities required by law. All the formalities required by law in making wills, must be complied with on pain of nullity.

The presence of the under tutor is indispensable at a family meeting- provoked to deliberate on the expediency of a sale of minors’ property, or ot the separate property of a deceased partner of the community in which minors are interested. The purchase by the surviving widow 'of the community and separate property of the deceased husband, is illegal and null, when there was no under tutor present at the family meeting, which advised the sale.

The Court of Probates overruled the opposition and set aside the partition of Stafford and wife, and referred the case to a notary for a partition according to the will and inventory. Stafford and wife appealed. The first object to which our attention is drawn, is the alleged invalidity of the will of Celeste Rogers. The counsel for the appellants contends that the Court of Probates erred in sustaining this will. It is in the mystic form; and nothing appears op the envelope which shows that the paper containing the will was either closed, sealed, or presented by the testatrix to the notary.

The superscription states only that the paper contains the mystic .will of the testatrix, written at her request and under her direction, and subscribed with her proper hand. If is clear that the formalities required by law were not observed,, and the will was improperly sustained. Louisiana Code, 1577, 1578. The Code requires the observance of. these formalities, under the pain of nullify. Ibid., 1588. The next object presented for our consideration, is the validity.of the purchase made by the mother of the property of the communit}’-, and that of the separate estate of her deceased husband.

Under this head, the counsel of the appellants urges the illegality of the proceedings which preceded the decree under which the sale was made, and the consequent nullity of the decree itself. The illegality of these proceedings is shown to result from the absence of an under tutor at the family meeting convoked to deliberate on the expediency of the sale.

The presence of the under-tutor is expressly required at such meetings, “for the purpose of advising; and when he is of opinion that the determination of the meeting is injurious to the interest of the minor, it is his duty to oppose the homologation of the proceedings.” Louisiana Code, 802. The illegality of the family meeting carries with it that of the decree bottomed upon its deliberation. Sublato funda-mento cadit opus. Had the decree been legal, the purchase of the mother and tutrix under it, would, on that account alone, be illegal, Louisiana Code,

article 327. Where a tutor renders an account of his tutorship, even contradictorily with the under tutor, the Court ofProbatesisnot authorized to ho-mologate it by a decree, making ^thl^minor^ an<1 t° discharge the former from his responsibiii-j^h®0 relieve and discharge a tutor, while the law makes him responsible to his pupil. We are, in tbe next plaqe, called upon to notice the decree of tbe Probate Court, rendered on the 7th January, 1829, homologating the account presented by the mother and tutrix of the plaintiff, Mrs. Stafford.

This account was .rendered contradictorily with an under tutor, the appointment of whom she had provoked two years after the death of her husband, and about a month before the rendition of her account.

Tutors under an order of the Court of Probates, must, and without it, may exhibit an account of their administration, ,, , , . , . . and the court may make certain orders thereon, but nothing authorizes it to homologate such accounts, so as to render them conclusive and binding on the minor; for the law ° . gives-to the latter the right, until the expiration of a certain delay after he comes of age, to examine and contest all the accounts of his tutor.

The court, therefore, can in no case ? , ... relieve and discharge the tutor from his responsibility, as has t t • .i • been done m this case. ' N It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed; and proceeding to give such judgment as in our opinion ought to have been given in-the court below, it is ordered, adjudged and decreed, that the will of Celeste Rogers be annulled and set aside, as well as the decree of the Court of Probates of the 6th of February, 1826, ordering the sale of the property of the community which existed between the parents of the plaintiff, Jeannette Stafford, and the property of the separate estate of her father, and- also the purchase thereof by the mother and tutrix, and likewise the decree of the 7th January, 1829, homologating the account presented by the tutrix, and discharging her from responsibility.

It is further ordered, that this cause be remanded to the Court of Probates, to allow and set off to the appellant, Jeannette Stafford, the property of the separate estate of Edward Kirkland, deceased, and one half of that of the community Avhich existed between him and his deceased wife, and to make partition of the other half of the communitjr and the separate property of Celeste Rogers, deceased, in, eqUal portions, between Nicholas Villain, M. R. E. Villain, wife of Aaron Prescott, and Jeannette Kirkland, wife of Josiah S. Stafford, after having settled and allowed Mrs.

Stafford’s claim on' the estate of her mother, as tutrix. The costs of the appeal to be paid by the appellees.