delivered the opinion of the c ourt.

This suit was commenced against the defendant in his capacity as curator, to obtain judgment, rendering the succession which he represents,liable to pay and satisfy the plaintiff’s demand, and also, to obtain a decree against him personally, on the event of the property of the estate of Wilson, being insufficient to pay all just claims against it, as having illegally administered the succession of the intestate. He denies ever having been curator, legally appointed, and that if he ever was such, he ceased to be before the institution of the present action. The court *64below sustained the pleas of the answer-? and discharged the defendant from his cu-ratorship, and refused to hold jurisdiction 0f the cause, and from its judgment the plaintiff appealed.

It appears from the evidence in the case, that Wilson died intestate, leaving, at his death? a widow, and several children? residing in the parish of Iberville ; the former accepted the community of acquets and gains, and in that right, claimed one-half of the estate left at the decease of her husband? and caused the other half to be adjudicated to her at the appraised value of the idventorj, and took upon herself to manage the estate of her children, as curatrix ad bo-na, of one, and as tutrix of the others, who were minors? under the age of puberty. Afterwards her father, Joseph Erwin, by her consent? was appointed administrator of Wilson’s succession. He ceased or declined to act in that capacity; was discharged by the court of probates, and Spraggins? appointed curator, as of a vacant estate. This last appointment was clearly illegal? as the heirs were all present in the state. Under pretence of having discovered the illegality *65of his appointment, the curator applied to the court, from which it was derived, to he discharged from his trust. This was opposed by several of the creditors of Wilson’s succession, and amongst others, the present plaintiff made opposition. The judge of the court ofprobates,notwithstanding the pretensions of the opponents, discharged him, and we think properly. His appointment being originally illegal, was rightfully avoided; it was perhaps, void, ab initio and consequently he was never a legal representative of the estate which he undertook to administer. As an administrator de son tort or an intermedler with Wilson’s estate, he may be answerable to creditors for waste. But those pursuits against him, must take place in a court of ordinary jurisdiction.

It is therefore ordered, &c. that the judgment of the court of probates be affirmed with costs.