Charles; Prentice E. Edrington, Judge. Petitory action, etc., by Samuel J. Fried-lander against Mrs. Rosie Friedman, wife of Charles E. Alexander. Exception of no cause of acuon sustained, and action dismissed, and plaintiff appeals.
¶2[2, 3] The real estate in suit was adjudicated at the succession sale of Joseph Friedman to one Reichenburg. He sold it to Mrs. Friedman, widow of the decedent, Joseph Friedman. Mrs. Friedman sold it to the author in title of defendant. Plaintiff alleges that the said succession sale was null: First, because Reichenburg was merely a person interposed for Mrs. Friedman, who was the real adjudicatee, and was incapable of buying, as she was the administratrix of the succession; and secondly, because Reichenburg himself was incapable of buying, as he was undertutor to one of the children and heirs of the deceased, Friedman.
¶3An exception of no cause of action was sustained below, and properly, since an under-tutor is not legally incapable of buying the property of the succession in which his ward is interested as heir (Smith v. Krause, 125 La. 703, 51 South. 693); and an administratrix is not necessarily incapable of buying the property of the succession she is administering, but may validly do so if the succession is that of her husband, and she is survivor in community (C. C. art. 1146; Linman v. Riggins, 40 La. Ann. 761, 5 South. 49, 8 Am. St. Rep. 549; Davidson v. Davidson, 28 La. Ann. 269), and plaintiff has not alleged that Mrs. Friedman was not survivor in community. Although Reichenburg was undertutor, therefore, and although Mrs. Friedman was administratrix, the succession sale in question may have been perfectly valid; hence the petition does not show a cause of action.
