Succession of King

On Rehearing. LAND, J. In the reasons assigned for granting a rehearing of this cause, this court said: “In this case, neither the state of Louisiana nor the attorney for absent heirs having appealed, and the court entertaining doubts whether the curator has sufficient interest to prosecute the appeal taken by him, it has been deemed advisable to grant a rehearing.” Since the granting of the rehearing on June 7, 1909, neither the state nor the attorney of absent heirs have taken advantage of the reopening of the case to prosecute an appeal and contest the judgment in favor of Mrs. Boehm. The said judgment, having become final, concludes the state from disputing the status of Mrs. Boehm as the widow of the deceased. Hence the state can take nothing as heir, nor claim the custody of the balance in the hands of the curator on the ground that no heir has presented himself. Rev. Civ. Code, art. 1196. The judgment by its very terms does not conclude the unknown heir or heirs, but requires the widow to give security for the restitution of the estate in case any heir should come forward within the space of three years. Rev. Civ. Code, art. 931. The curator has no> interest in the contest between Mrs. Boehm and the state, and cannot be permitted to appeal for the purpose of championing the claim of the state at the expense of the mass of the succession. The curator cannot appeal in *819 the interest of unknown heirs, because they are represented by the attorney for absent heirs. The Civil Code requires that the surviving wife, claiming as heir, shall proceed to assert her rights contradictorily with a person appointed to defend the interests of the absent heirs. Articles 030-931; Succession of Allen, 44 La. Ann. 801 , 11 South. 42 . A decree of possession rendered without such appointment is null. Id. Hence the curator is a mere stakeholder and cannot represent the absent heirs. Under the facts of the case, the reversal of the judgment would leave in the hands of the curator, after the payment of all debts and costs of administration, a considerable sum of money which the judgment precludes the state from claiming. The law does not contemplate any such result. The curator must deliver the balance in his hands to the heirs or pay the same to the State Treasurer. In paying to the heir who appears and is recognized by judgment of the court, the curator is fully protected. It is only when no heir appears that the curator is authorized to pay the balance into the state treasury. Hence the curator has no appealable interest in this controversy. The Civil Code does not contemplate that the curator should interfere in a case of this kind. The law provides for the citation of the attorney for absent heirs, and not of the curator, and further protects the interest of the unknown heirs by requiring the wife to give bond and security in their favor. The judgment below, in recognizing Mrs. Boehm as heir, orders her to give the security required by law. The merit of Mrs. Boehm’s claim cuts no figure in the consideration and determination of the motion to dismiss. However weak .this claim may be, the state and .the unknown heirs are precluded from contesting it by their failure to appeal, and the curator has no interest in the question. It is therefore ordered that our former decree herein be vacated, and that this appeal be dismissed. MONROE, J. I dissent, on the grounds stated in the original opinion.