Succession of Smith

Decision Date14 February 1969
Docket NumberNo. 2593,2593
Citation219 So.2d 291
PartiesSuccession of John B. SMITH. Irene Hanks SMITH, Plaintiff and Appellant in Rule, v. Rodney SMITH, Defendant and Appellee in Rule.
CourtCourt of Appeal of Louisiana — District of US

Eugene H. Lawes, of Bass & Lawes, Lake Charles, for plaintiff-appellant.

Domengeaux, Wright & Bienvenu, by D. Mark Bienvenu, Lafayette, for defendant-appellee.

Before TATE, FRUGE , and CULPEPPER, JJ.

TATE, Judge.

A brother was appointed administrator of a decedent's estate. The widow files these proceedings to revoke this appointment, alleging that she instead was entitled to administer her husband's estate. The trial court dismissed her rule to revoke the brother's appointment. The widow appeals.

The facts briefly are: The decedent John B. Smith was killed on April 11, 1967. Thirteen days later (April 24), his brother filed an ex parte petition and secured an order appointing him as administrator.

He immediately filed bond in the amount of one hundred dollars fixed by the court, as well as taking his oath as administrator. Letters of administration issued the same date.

Some five months later the widow filed the present proceedings to revoke the appointment. She alleges that, as surviving widow, she had a priority right to be appointed administratrix. LSA-CCP Art. 3098(1). The widow also attacks the brother's appointment as invalid because bond was furnished in insufficient amount.

The widow makes extremely equitable arguments. She points out that the brother was able to secure appointment unopposed, by moving hastily and without notice. LSA-CCP Art. 3094. 1 She further points out that the apparent reason for her husband's brother's applying so swiftly to obtain the appointment as administrator of her husband's estate was to control assertion of a federal Jones Act claim as the seaman's 'personal representative', 46 U.S.C.A. § 688, despite the circumstance that damages recovered by such personal representative are statutorily-designated as being for the benefit of the surviving widow and children of the decedent.

Nevertheless, wisely or unwisely, under the 1960 Code of Civil Procedure, the widow was not entitled to notice that someone else had applied for and received ex parte appointment as administrator of her husband's estate. To receive such notice and an opportunity to contest the appointment of another as administrator, an interested person must file a petition to receive such notification within ten days after the decedent's death (or at least prior to the application of another for appointment). LSA-CCP Arts. 3091, 3094. See Succession of Houssiere, La.App.3rd Cir., 146 So.2d 483.

If hearing has been provoked by such request for notice of appointment or by other means, then the court shall appoint the claimant having the highest priority. LSA-CCP Art. 3096. But it is only if such hearing has been provoked or is ordered that the priority of appointment is governed by LSA-CCP Art. 3098, upon which the widow-appellant relies.

The widow alternatively argues that the appointment of the brother as administrator should be revoked because he filed bond in insufficient amount.

Once a person is appointed or confirmed as succession representative, then (a) his appointment may be revoked if he fails to qualify, LSA-CCP Art. 3181, or (b) he may be removed for specified causes, LSA-CCP Art. 3182.

It is not claimed that any grounds exist for removal under the latter article. 2 See Succession of Houssiere, 247 La. 764, 174 So.2d 521.

The widow does, however, contend that the appointment of the brother as administrator is subject to revocation for filing a bond in insufficient amount. She relies upon the provision of Article 3181 providing for revocation of the appointment of a succession representative who fails to qualify for the office within ten days after appointment.

Here, however, the brother-administrator did qualify as administrator within the appropriate time. He furnished bond in the amount fixed by the court and he took the oath. LSA-CCP Art. 3159. Under these circumstances, Article 3181's provision permitting revocation of the appointment does not apply.

The widow argues strongly that nevertheless the brother-administrator did not really qualify for such office, because he did not furnish 'the security required of him By law.' Article 3159. The bond fixed by the court was only in the amount of $100, whereas by law (LSA-CCP Art. 3151) it should have exceeded by one-fourth...

To continue reading

Request your trial
10 cases
  • Robinson v. Nunly
    • United States
    • Court of Appeal of Louisiana — District of US
    • 15 Junio 2011
    ...under La. C.C.P. art. 3091. They failed to do so, thus waiving any objection to Ms. Nunly's appointment. Succession of Smith, 219 So.2d 291 (La.App. 3 Cir.1969). 2. In fact, the concurrence diverges from the majority's finding that no administration was needed under La. C.C.P. art. 3006. 3.......
  • Succession of Mangle
    • United States
    • Court of Appeal of Louisiana — District of US
    • 16 Mayo 1984
    ... ... Cf. Succession of Armentor, 426 So.2d 1366 (La.App. 3rd Cir.1983) (the trial court there correctly allowed the correction of a clerical error which stated an amount for security less than required by law); Succession of Smith, 219 So.2d 291 (La.App. 3rd Cir.1969) (the court held in that case that the order appointing the administrator of the estate could not be set aside on the ground that the amount of bond fixed by the court and furnished by the administrator was less than required by law). The executrix can be ... ...
  • Succession of Riggio
    • United States
    • Court of Appeal of Louisiana — District of US
    • 26 Enero 1981
    ... ... LSA-C.C.P. Art. 3083 ... 2 While there is little doubt that defendant knew of plaintiff's administration, the administratrix was under no obligation to notify him of her appointment since he did not formally request notice. LSA-C.C.P. 3091. Succession of Smith, 219 So.2d 291 (La.App. 3rd Cir. 1969) ... 3 We cannot deprive Peter Riggio of his right to be executor under the will. That he has interests contrary to those of other heirs is not a ground to find him unfit to be executor. LSA-C.C.P. Art. 3097(6). Succession of Browne, 244 La. 36, 150 So.2d ... ...
  • Smith v. Clark Sherwood Oil Field Contractors
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 17 Abril 1972
    ... ... Although noting that the "widow makes extremely equitable arguments", the Court of Appeal of Louisiana rejected her contentions and upheld Rodney's appointment. Succession of Smith (Ct. of Appeal of Louisiana, Third Circuit, 1969) 219 So.2d 291, 292. 1 ...         Failing in this attempt, the widow had herself appointed administratrix of the decedent's estate in Texas and there filed a Jones Act suit in an attempt to recover for the death of her husband ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT