CHAPTER VII - OF THE ADMINISTRATION OF VACANT ESTATES AND ESTATES AB INTESTATO
Art. 118. An estate is said to be vacant when no person claims its possession either as an heir, or under any other title.
Those estates are administered by curators appointed by the judge, in the manner hereafter prescribed.
Art. 119. An estate is said to be ab intestato when the possessor has died without a will.
Art. 120. Estates ab intestato when the heirs are wither unknown or absent and not represented by any person in the territory, are administered by curators appointed by the judge, as hereafter prescribed. But such administration shall not take place if all the heirs are present or represented in the territory, though all or some of the heirs should be minors; the rights of such minors being fully exercised by their tutors or curators.
Art. 121. Those persons are said to be curators of vacant estates, who have been appointed by the judge to administer on estates ab intestato, the heirs of which are either unknown or all absent and not represented in this territory.
Curators of absent heirs are persons appointed by the judge, to take care and administer on the portion of an estate ab intestato which falls to the share of absent heirs, in cases where some of the heirs only are absent and not represented in the territory.
Art. 122. It is the duty of every person who knows of any individual, having died without a will and having left property in this territory, to make the same known immediately to the parish judge, or to the nearest justice of the peace residing in the parish where the deceased has died, if he died in the territory, and in case such death should have happened abroad, such information shall be given to the judge or to any justice of the peace of the parish where the deceased has left his most valuable property, and every person convicted of having neglected to perform the above mentioned duty, shall be subject to a fine not exceeding one hundred dollars and not less then twenty five dollars.
Art. 123. It shall be the duty of every parish judge or justice of the peace, who shall have received information of any person having died intestato, and having left property in the territory, to make every necessary enquiry to ascertain whether the deceased has left any heirs in the territory or whether the said heirs or some of them are absent and not represented in it.
And if said judge or justice of the peace is convinced after said enquiries that there are no acknowledged heirs to the deceased's property, or that his heir or heirs or some of them are absent and not represented in this territory, it shall be the duty of the said judge, to go to the house where the deceased shall have died and to affix seals on all the effects where they may be conveniently affixed.
Art. 124. The affixing of seals in this case as well as in all others in which they may be necessary in obedience to the law, must be performed by the parish judge or justice of the peace, in presence of two persons requested to attend as witnesses for that purpose. The parish judge or justice of the peace, shall be bound to keep a record, proces verbal, of his having affixed said seal, as well as a list comprising every article on which the seal shall not have been affixed; he shall also appoint a guardian to take proper care of every thing and shall take charge of all the keys of the bureau and of the rooms on the doors of which seals have been affixed.
Art. 125. If the seals have been affixed by a justice of the peace, it shall be the duty of said justice of the peace to give information of his proceedings to the parish judge, and to transmit to him together with the keys of the bureau and rooms on which seals have been affixed, a copy of the record or proces verbal of his proceedings.
Art. 126. Eight days after the affixing of the seals, if no testamentary executor or person or persons claiming as an heir or under any title whatever, should present himself, the said judge shall proceed to take off said seals, in presence of two persons requested to be witnesses for that purpose, and of every interested person who shall desire to attend.
Art. 127. In all cases of estates ab intestato where all the heirs or any of them shall be absent and not represented in the territory whether the seals have been affixed or no, it shall be the duty of the judge of the parish or of the parishes in which the deceased had moveable and immoveable properties, debts and credits, to make inventories of the same, in presence of the heirs who are within the territory or represented in said territory, if there be any. The said inventory must also contain an appraisement of the moveable and immoveable property of said estate made by two sworn appraisers appointed for that purpose by said parish judge.
Art. 128. Immediately after the inventory of said property shall have been completed, the parish judge by whom said inventory shall have been made, shall cause all said moveable and immoveable property to be publicly sold to the highest bidder, after the usual notice of said sales shall have been given.
Art. 129. If the parish judge, by whom said sale is to be made, believes that said moveable and immoveable property comprised in the inventory, cannot be sold for cash without materially injuring the interest of the parties, he shall have the power to grant such terms as he shall think proper for the payments, provided it be by the advice and with the consent of the heirs present or represented in the territory, if any be present, and provided also that such judge shall require from the persons to whom such property may be adjudged, such security as shall assure the payment of the things sold, when the same shall become due. But in all cases the judge shall have the power of causing such a portion of the estate to be sold for ready money, as shall be necessary to discharge funeral charges and costs, as well as the expences occasioned by the last sickness of the deceased, and such others as may be necessary and indispensable.
Art. 130. Should all the heirs or any of them be present or represented within the territory, the parish judge who shall have made the inventory, shall order the partition of the estate between the heirs that are present or represented within the territory, and those that are absent from and not represented within the territory, according to the forms prescribed under the present title, for the partition of estates to be made by judicial authority between co-heirs and co-proprietors, and said judge shall appoint an attorney to defend the rights of absent heirs not represented, at the time of said partition.
Art. 131. When the share of each heir shall have been ascertained by such a partition, the judge of the parish in which the deceased shall have died, if he has died in the territory, or if he has died abroad, the judge in whose parish the greatest portion of his estate shall be situated, shall appoint a curator to administer on the portion of the estate which shall fall to the share of the absent heirs, as well as to discharge all just claims against said portion of the estate. The curatorship must be entrusted, in preference to any other person, to the heir who is present or represented within the territory, and is case there shall be several heirs present or represented within the territory, the judge shall appoint them joint curators.
Art. 132. When it cannot be known with certainty whether there exists any heir, or when all the heirs are absent and not represented in this territory, the judge of the parish in which the deceased shall have died, or that of the parish in which the greater part of his estate lies, if the deceased shall have died out of the territory, shall appoint a curator to receive the proceeds of the sales of the estate, and to discharge all just claims against said estate, if there be any; in selecting curators, the surviving husband or wife shall be prefered to the relations of the deceased, and the relations of the deceased shall be prefered to his creditors, and the creditors themselves shall have the preference over strangers, and persons not interested in the estate, provided the persons to be thus preferred have the necessary qualifications, and can furnish sufficient securities.
Art. 133. In case it shall happen that the deceased, whose heirs, or some of them, are absent and not represented in the territory, was in partnership with some person at the time of his death, the judge, notwithstanding such partnership, shall affix the seals, make the inventory, cause a partition of the joint estate to be made with the surviving partner, and appoint a curator to administer on the estate of the deceased, although the partnership be not expired, unless it had been agreed between the partners, in the articles of partnership, that the partnership should still continue between the surviving partner or partners and the heirs of the deceased partner, in which case the joint property shall remain in the possession of the surviving partner or partners, until the expiration of the partnership, and the surviving partner or partners shall not be compelled to give any security for his or their administration of the joint stock.
Art. 134. The curators of vacant estates or of absent heirs shall make oath in the presence of the judge by whom they shall have been appointed, that they shall truly and faithfully perform the duties imposed on them by the nature of their functions, and they shall moreover furnish good and sufficient security for the faithful discharge of their duty, and for the safe restitution of all the sums which they may receive during their administration.
The amount of the security to be required from curators of vacant estates, shall be of the value of the estate as appraised in the inventory; and curators of absent heirs shall give security of the amount of the appraised value of that portion of the estate, which belongs to the absent heirs, not represented in the territory, on which they have to administer.
Art. 135. The curators of vacant estates and absent heirs, are subject to the same duties that are imposed to the tutors or curators of minors, with this exception that they are not obligated to take the advice of a meeting of the family and are not liable for the payment of interest on the sums of which they have the management belonging to the estates on which they administer.
They are liable like the tutors of minors and for the same causes to be removed by the judge from whom they hold their appointment.
Their estates also, like those of the tutors of minors, are tacitly mortgaged from the date of their appointment during the whole time of their administration.
They appear like tutors in all courts of justice either as plaintiffs or defendants, in all cases in which the vacant estate or the absent heirs are concerned.
Lastly, they possess the same powers which are exercised by tutors, for recovering the debts due to, or for discharging those due by the estate on which they administer; but they are subject in making payment to the following rules.
Art. 136. The curators of vacant estates and of absent heirs shall not pay any debt due by the vacant estate, or by the portion of the estate of which they are administrators, until three months have elapsed since the death of the deceased or after the same became known, for the purpose of allowing sufficient time to the creditors of said estates, to put in their claims, under the penalty of becoming personally liable for all sums paid by them contrary to the present provision.
It shall also be in the power of the judge who shall have appointed a curator to prolong the delay beyond the time fixed by the law, for the payment of the debts due by an estate, if he is satisfied that there exist or that there are strong reasons to believe that there exist some creditors whose remote situation prevent the possibility of making their claim known during the legal delay, provided such prolongation shall never exceed by more than three months, the delay granted by the law.
Art. 137. At the expiration of the delay granted by law for the payment of the debts of the estate, or of that which may have been granted by the judge, in the manner above stated, the curators of vacant estates and of absent heirs shall not proceed to the payment of the debts of the estate, until they have previously obtained the authorisation of the parish judge by whom they have been appointed; that authorisation shall even be necessary in case there were money enough in hand to discharge all claims on the estate; but should there not be sufficient property to satisfy all demands, it shall be their duty to cause the parish judge to regulate the classes of the privileges and mortgages, and thus to establish the rank in which the creditors shall receive their payment.
Art. 138. Public notice shall be given by the curator in both the English and French languages, of his having obtained an authorisation to make payment or of the sentence of the judge which settles the rank in which the creditors must be paid, either by papers posted up in the usual places or through the news papers, to the end that any person interested to oppose the payment in the manner ordered, may take the necessary steps for that purpose.
Art. 139. Ten days after such public notice shall have been given, if no opposition is made to the same, the curators of vacant estates and of absent heirs, shall proceed to pay the just demands of creditors, and such payment shall be final, without any resource or remedy for the creditors who may have delayed to make their claims known.
If any opposition is made to the payment as ordered, the parish judge by whom the authorisation of making payments and the classing of privileges has been made, shall determine in a summary way on the merit of the opposition, saving the right of the parties to bring an appeal from such judgement to the superior court.
Art. 140. The curators of vacant estates and of absent heirs, may however, previous to the expiration of the legal delay, pay and be compelled to pay all the funeral and judicial charges as well as those of medical attendance during the last illness of the deceased, provided the account of said expences be approved by the parish judge by whom said curators shall have been appointed.
Art. 141. The curators of vacant estates and of absent heirs, shall be entitled to a commission of two and a half per cent. to wit: the curators of absent heirs on the amount of that portion of an estate which falls to the share of the heirs whose rights they represent, and the curators of vacant estates on the amount of the inventory comprising the property of said estate they administer on; the debts due by insolvent debtors, as well as articles which prove of no value, must be deducted.
Art. 142. The functions of curators of vacant estates, cease whenever the heirs or persons having just titles to said estates, shall appear either in person or by their attorney to claim the same; in such cases the curators shall render an account to the said heirs or to their attornies and shall pay to them whatever sum proceeding from said estate which may remain on hand.
The provisions of the present article are applied to the curators of absent heirs whenever said heirs appear either in person or by their attornies to claim the estate.
Art. 143. The functions of curators of vacant estates, shall moreover cease when they render the account which it is their duty to lay before the judge from whom they shall hold their appointment, at the expiration of the time which the law grants to them, to settle the accounts of the estate, the administration of which is confided to their care.
Art. 144. The curators of vacant estates, shall at the expiration of one year and one day after their appointment, render an account of their administration, to the parish judge, by whom they shall have been appointed. - But said judge may nevertheless prolong the aforesaid period, provided it appears that it was not possible to settle the accounts of the estate in the time granted by law, provided however the time so granted be not prolonged beyond three months more than the legal delay.
Art. 145. It shall be the duty of the judge, to whom such accounts shall be submitted, to approve them, if they are just and correct, and to reject the articles which are not justly stated, to establish the true balance; and a settlement of the account thus made, shall have the same force as a judgment against said curators who may however appeal from such settlement to the superior court.
Art. 146. When the balance in favor of the estate, shall have been finally settled, it shall be the duty of the curator of that vacant estate, in the delay of three days after such settlement, to pay such balance, in the hands of the treasurer of the territory, or in those of the parish judge, as provided in the following article.
Art. 147. The money belonging to vacant estates, shall be paid to the treasurer of the territory, whenever said vacant estates are administered within the county of Orleans, but the curators of vacant estates situated in other counties of this territory, shall make their payments in the hands of the parish judge to whom they shall submit the account of their administration.
The curators of vacant estates on paying to the proper persons the balance due by them, shall take two receipts, in which the sum paid, as well as the name of the person from whose estate said sum proceeds, shall be mentioned, one of which receipts shall remain in the hands of the curator for his discharge, and the other shall be lodged in the records of the parish judge, from whom said curator holds his appointment.
Art. 148. The parish judges who shall thus receive monies belonging to vacant estates, shall be bound to lodge the same annually in the hands of the treasurer of this territory at the same time, when the law directs them to give an account of the territorial tax of their respective parishes, and they shall at the same time, transmit to the said treasurer, a list containing the names of the persons to whose estates said sums belong, and stating the amount of the sums belonging to each estate.
Art. 149. Owing to the responsibility vested in them by the three preceding articles, the judges of all the parishes (except those of the county of Orleans) and the treasurer of this territory, shall be compelled to furnish to the governor additional securities, besides those they have already given for the performance of their former functions, to wit: The treasurer shall give a security for a sum of five and twenty thousand dollars, and each parish judge shall give security for the sum of five thousand dollars, which additional security shall be bound for their faithful performance of their duties with respect to vacant estates.
Art. 150. The sums belonging to vacant estates which shall be paid to the treasurer of the territory, shall be considered as a deposit in his hands, until claimed by the legal heirs or successors. The legislature may however use those sums for the wants of the territory, by securing the repayment of the same in such a manner that the heirs that shall claim them, shall not suffer any delay in obtaining payment.
Art. 151. If after the monies proceeding from a vacant estate have been paid to the treasurer, or to any parish judge, a person should appear as an heir, or under any other title, that person must appear before the parish judge in whose office the receipt for said monies, is deposited, and the said judge, after inquiring into the nature of his title of claim, if he be of opinion that the same is just and legal, shall issue an order either that the whole of the sums thus deposited, or such part as is justly due, be paid to the petitioner.
And the treasurer of the territory, and every other person in whose hands such monies may be, shall, on a certified copy of such order of the judge being exhibited to them, be obliged to comply with the same.
Art. 152. It shall be the duty of the testamentary executors of estates, the heirs of which shall be absent and not represented within the territory at the expiration of the time fixed by law for their administration, to render an account of it to the parish judge who issued the testamentary letters, and to pay the balance they have in hands, either to the treasurer or to the parish judge, as provided with respect to the curators of vacant estates.
If at the expiration of the legal time fixed for the testamentary administration, some only of the heirs are absent and not represented within the territory, the parish judge by whom the testamentary letters have been granted, shall appoint a curator to administer on the portion of the estate which belongs to the absent heirs, in the manner provided in the present chapter, for the appointment of curators of absent heirs, and it shall be the duty of testamentary executors to render an account to the curator thus appointed, of the portion of the estate which belongs to the absent heirs.
Art. 153. The functions exercised by the parish judges by virtue of the law in general as well as by the provisions contained in the present code with respect to the opening, the proving and recording of wills and codicils, the appointments, confirmations, removal or discharge of testamentary executors, tutors and curators of minors, interdicted and absent persons, the accounts to be rendered by those administrators, the affixing and taking off seals, the inventory, appraisement and sale of estates where absent heirs are interested, and generally all judicial acts relative to said persons and to the administration of their property, shall be exercised, as it regards the parish of Orleans, by the city judge with the assistance of the register of wills, and said register shall receive for said acts the same fees which are paid to the parish judges and public auctioneers by virtue of the several laws which are or may be enacted to regulate the same, the third of which fees shall belong to the said city judge, and therefore all the powers which are given to the register of wills, by the act entitled "an act establishing a court of probates for the territory of Orleans," which are not continued in force by the present article, as well as all the other provisions of the said act respecting the establishing of a court of probates for this territory, be and are by the present repealed.
Art. 154. If in the number of duties which are imposed on the parish judges, by the present code and by the general laws of the territory, there are some services for which no compensation is established, the said judges are hereby authorised to demand and receive the same fees for such services as were formerly taken by the judges previous to the taking of possession of this territory by the United States, until otherwise provided for by law.