¶1delivered the opinion of the court.
¶2Garrett, having purchased property sold by an order of the Court of Probates, on the application of one Williams, who had procured letters of curatorship on the estate of James Brown, deceased, obtained the homologation of the sale, after publication of a monition, according to the act of the legislature, approved March 10th, 1834. Preston, suggesting that Brown’s succession had been opened in the parish of New-Orleans, where he had qualified as testamentary executor, long before Williams was appointed curator, is appellant from the judgment of homologation.
¶3The appellees deny that Preston is executor of Brown’s estate, because the year of the executorship, which began on *615the 11th July, 1835, expired the same day in the following year, and he has not shown a prolongation. The judgment appealed from was rendered the 23d October, 1836.
¶4This being a question of fact, raised in this court, on which we are not authorized to receive evidence, nor to act in the first instance, the proceedings before us must be suspended? until it be tried in the court which granted the appeal. Taylor et al. vs. Jeffries’s estate, 10 Louisiana Reports, 435, 438.
¶5It is, therefore, ordered, adjudged, and decreed, that the case be remanded to the Court of Probates, with direction to the judge, to inquire into the claim of the appellant to the right of appeal. «