Opinion
No. 42125.
December 10, 1956.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE ALEXANDER E. RAINOLD, J.
M. Hepburn Many, Morphy Freeman, New Orleans, for petitioners and appellants.
Philip P. Spencer, New Orleans, for appellee.
The beneficiaries under a purported olographic last will and testament executed on August 21, 1953 by the decedent, Miss Ella C. Bechtel, are appealing from a judgment refusing to probate the will on the ground that it does not comply with the form required by law. No inventory of the effects of the succession has yet been taken and no evidence was adduced below revealing the succession assets and their value. Notwithstanding this, appellants maintain that this Court has appellate jurisdiction because the testament contains dispositions of 12 lots in the Fifth Municipal District of the City of New Orleans and approximately $1,000 of insurance, which disclose that more than $2,000 is at issue.
The contention is not well founded. The appellate jurisdiction of this Court in succession proceedings depends upon whether the fund to be distributed exceeds $2,000, irrespective of the amount claimed. Section 10, Article 7 of the Constitution; Succession of Templeman, 134 La. 798, 64 So. 718; Succession of Wengert, 178 La. 1027, 152 So. 747; Succession of Lecompte, 196 La. 287, 199 So. 122 and Successions of Ethridge, 210 La. 1038, 29 So.2d 55. In the absence of an inventory or other evidence revealing the assets of the succession and their value, there is no affirmative showing that the fund to be distributed exceeds $2,000, which is essential in order to vest the Court with appellate jurisdiction of this type of case. Succession of Derouen, 216 La. 957, 45 So.2d 91 and Succession of Wesley, 222 La. 411, 62 So.2d 625. Hence, the appeal should have been taken to the appropriate Court of Appeal under Section 29 of Article 7 of the Constitution.
It is therefore ordered that the case be transferred to the Court of Appeal for the Parish of Orleans provided that the record is filed in that court within 30 days from the date upon which this decree shall become final; otherwise, the appeal shall be dismissed. The costs incurred in this Court shall be paid by appellants.
FOURNET and HAWTHORNE, JJ., absent.