delivered the opinion of the court.
The plaintiffs state, that they are legatees on a universal title, of their deceased father, Joseph Dupré, who on the sixth *175©f July, 1810, made his last will and testament, in which, after giving sixty-four hundred dollars, to J. B. S. Cloutier, his brother of the half blood, and only heir, he made a bequest to the petitioners of all his slaves, lands, live stock, &c., after his debts were paid. The petition states other facts, which it is not necessary for understanding the opinion of the court, to set out.
The defendant pleads among other things :
1. Res judicata in this : That there was a suit between him as curator to the heir at law, and the testamentary executor of said will, who represented all the parties interested i and that by the judgment rendered in said case, the whole of the property of the deceased testator, was decreed to belong to the heir at law, J. B. S. Cloutier. That the said J. B. S. Cloutier has since died, and that the respondent is his heir and represents all right, which his son acquired in the succession.
2. That the plaintiffs were incapable of receiving any legacy from the testator, because they are the children of Adelaide, a woman of color, who was the concubine of the said testator, and lived with him for a long time before, and at the time of his death, in open concubinage.
The cause being thus at issue the mother of the plaintiffs, intervened and stated, that if her children .were slaves, as the defendant had alleged they were under the decree of the court, then it followed, that the bequest belonged to their, owner, and not to the heir at law : That this owner was her mother, and that she had since died, and her succession had devolved on the interpleader. In consequence she prayed that the court might decree and adjudge, that the property left by Dupré belonged to her.
To this petition in intervention, the defendant answered: That the petitioner had no right to intervene. That she was legally represented by the executor, in the suit between him and J. B. S. Cloutier; and that by law, as well as by the decree in that case, the legacies were declared null, in consequence of the incapacity of the legatees.
The first question to be examined, is the plea of res judicata. We are of opinion it is not sustained. Parties must be heard *176before they can be condemned; and it does not appear the p,.egeilt piaintiffs were represented in the suit to which the authority of the thing judged is offered against, them. The law says in case of a contestation, the executor may interfere to sustain the validity of the will. There is no doubt he may, an¿ fr is perhaps his duty to do so. But his right to interfere m a contestation cannot be extended to make him the representative of the conflicting' interests which the will has created,
. The next is the right of the plaintiffs. They contend they were free, because their mother was free. The proof of her freedom is offered in an act made by their grandmother preJ ° ^ vious to their birth: it is dated the twenty-eighth of December, 1797. She had the preceding year purchased her <laughter> and in this act she declared that from materna! love and affection, she thereby gave freedom to her daughter from the moment of her, the donor’s death. In other words she made her daughter a statu liber.
But the plaintiffs insist that this declaration on the part of the mother, manumitted the daughter, and in support of their position they rely on the Roman Code, lib. 7, tit. 6, nos. 9-10, and the 9th note of Gregorio Lopez on the 5lh law of the 15th title of the 4th Partidas.
We have examined these authorities, and it appears to us manumission did not necessarily result from such a declaration. That it is a presumption which the law raises from the parent calling the slave his child in a public instrument; and nothing in the provisions of the Roman law prevented the father or mother holding the child in slavery, when either qualified the acknowledgmeht in the authentic act. By the laws of Spain the relation of father and son did not prevent) their holding each other as slaves, and we think that as they were permitted to hold either as a slave, they might hold him! as a statu liber, and make him such. Par. 4. tit. 21, law 1.
This opinion renders it unnecessary to examine a questionl much discussed on the argument whether natural children could be considered as persons interposed to convey a dona*177tion to their mother, a concubine, whom the law considers incapable of receiving.
The last question is the right of the mother, who by the decease of the grandmother has become free. She insists that if she and her children were slaves to her mother at the time the legacy was given, it follows that the property bequeathed became that of her mother; because by law every thing given to the slave by last will and testament belongs to the master.
To' this pretension the defendant opposes the 193d article of the old Civil Code, which declares dispositions to an heir incapable of receiving, caduque or lapsed. Civil Code, 250, art. 193.
If this disposition stood alone in our law it would be conclusive against the right which the mother sets up. But at the time this testament was opened, in the year 1810, the laws of Spain were in force in Louisiana; and although we find in them the same general provision, that there is in our code, namely, that a legacy to a person incapable of receiving is null and of no effect. We find an exception standing with it created by positive statute, that a legacy given to a slave, shall belong to the master of that slave in the same manner as if the gift was directly made to him. Par. 4, lit. 21, law 7. Febrero, part 2, lib. 2, cap. 8, § 3, no. 86.
The question then recurs, does the enactment in our code of a general provision existing in the Spanish law, repeal the exception which accompanied it in that law. We have so repeatedly decided the contrary, and the jurisprudence of the court is so fixed in this matter, that it is unnecessary to refer to cases in which the principle has been settled.
We think as the freedom of the mother took place the instant the grandmother died, there was capacity to inherit.
The successsion and liberty came at the same moment; there was consequently no incapacity existing when the inheritance devolved on the legatees.
The court below and jury decided the case in favor of the grand children; that judgment must be reversed, and ours be for the mother.
*178They also decided, that the defendant should pay interest since the time he received the estate from the executor. The property had been previously sold, and the proceeds were see on what ground interest was given. He did not hold it, in right to the plaintiff, but contradictorily to her; and the case cannot be distinguished from that of any other debtor, who owes money, and neglects or refuses to pay it. handed over to the defendant in money, we do not therefore
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided, and reversed: And it is further ordered, adjudged, and decreed, that the’intervener, Adelaide, f. w. c. do recover of the defendant the sum of six thousand six hundred and eighty-six dollars, with interest at the rate of five per cent, from the 28th April, 1830, until paid; and cost in the court of the first instance. Those of appeal to be paid by the appellees.