Opinion
No. 41049.
November 9, 1953.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE L. ROBERT RIVARDE, J.
Frederic C. Querens, New Orleans, for appellant testamentary executrix.
Guy L. Deano, Jr., New Orleans, for B. W. Rolling.
Sidney G. Roos, New Orleans, for defendants-appellees.
This is an appeal from a judgment rejecting a petition for declaratory judgment on the grounds that it sets forth no right or cause of action and that it had been prematurely presented.
The executrix presented two olographic wills of the decedent for probation and execution in the lower court. After the wills were probated and other steps taken in the succession proceeding, among which was a demand for collation, the executrix petitioned the lower court for a declaratory judgment interpreting the wills with the view of determining the true legal effect of their provisions and dispositions in order that she might execute same in accordance with law.
The appellees excepted to the petition on the ground that it disclosed no right or cause of action and interposed a plea of prematurity. The trial court sustained the exceptions and plea and dismissed the petition for a declaratory judgment. The executrix has appealed.
It is provided in LSA-R.S. 13:4234 that "Any person interested as or through an executor, * * * legatee, heir * * * in the administration * * * of the estate of a decedent, * * * may have a declaration of rights or legal relations in respect thereto: * * * (3) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings." Under these provisions of The Declaratory Judgment Act, the trial judge was in error in sustaining the exceptions and the plea.
The appellees contend that the wills cannot be construed prior to the disposition of their demand for collation by the appellant. It would appear from the aforementioned provisions of the declaratory judgment act that the executrix could petition the court at anytime during the proceedings for an interpretation or construction of the wills in order that she might administer the estate in accordance with law.
For the reasons assigned, the judgment is reversed and set aside, the exceptions are overruled and the plea of prematurity is denied. The case is now remanded to the lower court to be proceeded with according to law. All costs to await the final disposition of the case.