M'NEILL'S HEIRS vs. ELKINS' EXECUTOR ET AL., 10 La. 587

Martin, J., delivered the opinion of the court. The plaintiffs state that their ancestor was creditor of Brooks, who made a cession of goods, on which Elkins was appointed syndic, and in that capacity received a large sum of money, which, at his death, remained unaccounted for in his hands. They pray that the executor may file an account of the syndicship, and pay over to the creditors of Brooks the balance due them by the testator ; and that in the meanwhile, the executor be enjoined from paying over the proceeds of the succession to the heirs, until they shall have given security, &c.

The defendants filed an exception to the jurisdiction of the court, which was sustained, and the plaintiffs appealed. The judge of probates, was of opinion that as Brooks’ syndic had never filed any tableau, and the dividend coming to the plaintiffs is uncertain, the plaintiffs had no claim. This may be correct, and may authorize after a hearing, a judgment against the plaintiffs, but it cannot authorize the Court of Probates, in declining to take cognizance- of the case.

The counsel for the appellees, has likened this case to one in the federal courts, in which the plaintiff must show his capacity of suing in that court, and the defendants’ liability to be sued therein; and when this is not shown, the plea to the jurisdiction will be sustained. He has urged, that the Court of Probates, being like the federal court, a court of limited jurisdiction, the plaintiff must show his capacity of suing there, to wit: that he is a creditor of the estate; and that in the present case, the plaintiffs have only shown that their ancestor was a creditor of Brooks, not of Elkins.

The plaintiffs show, indeed, that their ancestor was a creditor of Brooks, and that the estate of the latter passed into the hands of Elkins, and remained in his hands unaccounted for. They, therefore, have an interest, in common with the other creditors of Brooks, in having the property surrendered, in the hands of Elkins, at his death, separated from his private property, and to prevent the surrender of it to the heirs of Elkins, who reside abroad, until they, or their agent, give security for its forthcoming.

The plaintiffs, therefore, properly applied to the Court of Probates, before whom alone the executor was suable, in order that cautionary measures might be taken for the protection of their rights. It is useless for us now to inquire into the nature and extent of the relief, to which they are entitled, nor whether they may be required to make other persons parties; it suffices that the Court of Probates is the proper, indeed the only court, in which the relief they seek may be obtained, to authorize the conclusion that that court cannot decline to take cognizance of the case.

So, •where'' the creditors of an insolvent set up claims against the estate of a deceased syndic, alleging that property of the ceding debior came into his hands, and remained unaccounted for, the Court of Probates is bound to take cognizance of the claim, and prevent the funds of the succession from being paid over or taken from its jurisdiction, until the demand is litigated.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates, be annulled, avoided and reversed, the exception to its jurisdiction be overruled, and the case remanded for further procéedings according to law ; the defendants and appellees paying costs in this court.