Succession of Smith
| Court | Court of Appeal of Louisiana (US) |
| Citation | 219 So.2d 291 |
| Docket Number | No. 2593,2593 |
| Parties | Succession of John B. SMITH. Irene Hanks SMITH, Plaintiff and Appellant in Rule, v. Rodney SMITH, Defendant and Appellee in Rule. |
| Decision Date | 14 February 1969 |
Page 291
Irene Hanks SMITH, Plaintiff and Appellant in Rule,
v.
Rodney SMITH, Defendant and Appellee in Rule.
Page 292
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.
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Robinson v. Nunly, 46,053–CA.
...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.......
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Succession of Mangle, 83-606
...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......
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Succession of Riggio, 13954
...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. 3 We cannot deprive Peter Riggio of his right to be executor under the will. That he has interests contrary to those of ot......
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Smith v. Clark Sherwood Oil Field Contractors, 71-1570. Summary Calendar.
...Louisiana rejected her contentions and upheld Rodney's appointment. Succession of Smith (Ct. of Appeal of Louisiana, Third Circuit, 1969) 219 So.2d 291, Failing in this attempt, the widow had herself appointed administratrix of the decedent's estate in Texas and there filed a Jones Act suit......
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Robinson v. Nunly, 46,053–CA.
...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.......
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Succession of Mangle, 83-606
...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......
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Succession of Riggio, 13954
...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. 3 We cannot deprive Peter Riggio of his right to be executor under the will. That he has interests contrary to those of ot......
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Smith v. Clark Sherwood Oil Field Contractors, 71-1570. Summary Calendar.
...Louisiana rejected her contentions and upheld Rodney's appointment. Succession of Smith (Ct. of Appeal of Louisiana, Third Circuit, 1969) 219 So.2d 291, Failing in this attempt, the widow had herself appointed administratrix of the decedent's estate in Texas and there filed a Jones Act suit......