delivered the opinion of the court.
The defendant is named executor in an instrument which he affirms to be the last will and testament of one Phillippe Sterlin, deceased. The plaintiff who is natural son of the deceased, and who alleges that his father left no legitimate ascendants or descendants, or brothers or sisters, sues to have this will declared null and void, and to obtain possession of the property of which the deceased died possessed.
The defendant contents the quality of the petitioner, but we think the evidence clearly establishes it. Admitting the objections made to the previous will, in which the plaintiffis expressly recognized as his natural son by the deceased, still it is good as a declaration before a notary and witnesses.
The instrument which the defendant presents as the last-will and testament of the deceased, cannot be considered such, because the witnesses to it do not reside, nor did reside at the time it was made in the same parish with the testator, and they are not in sufficient number to meet the requisitions of the law, considering them to be non-residents.
By the 1571st article of the Louisiana Code, nuncupative testaments, by public act must be received by a notary public, in presence of three witnesses residing in the place where the will is executed, and of five residing out of it.
By the 1587th article, it is declared that by the residence of witnesses in the place where the testament is executed, is understood their residence in the parish where that testament is made.
In the present case there were but three witnesses, and they did not live within the parish, the testament is therefore null and void. La. Code, 1588.
Sales of propor-wíUwMcuL mii b,e set aside i>y tile court, unloss íhird persons who have obtained an iB So madePartlesIt has been contended, that as the house was situated near the dividing line of the parishes, and the witnesses were drawn from the immediate neighborhood of the testator’s domicil, the spirit of the law was complied with. Perhaps it was, but the law sajs the formalities prescribed must be pursued, otherwise the testament is null and void. The legislature having made parochial limits, and not distance the criterion, we cannot substitute the latter, and if we did, we should soon be involved in the difficulties which we have not doubted induced the law makers to establish a rule of a different kind. What distance would be sufficient, one mile, half a mile, or five? The decision on such grounds would be necessarily arbitrary, and introduce great uncertainty and confusion.
It was urged, however, that although the law declares a will invalid for such grounds as these, still no testimony could be introduced to prove the facts by which the invalidity is established, unless the.will be alleged to be false argue de faux. The provision in our Code on which this objection principally rests, is found in that part of it which treats of the proof necessary, before the execution of wills can be ordered. It declares that nuncupative testaments do not require to be proved, unless they are alleged to be forged. The defendant says it should be, unless they are false. Admitting this liberty could be taken with the text, we do not think the law applicable to the case before us, for the notary does not declare that the witnesses are residents of the parish of Orleans. Therefore, unless we concluded that though the will was invalid, it could not be set aside, because the notary had so worded it that his allegations could not be. charged to be false, the objection to receive the parol evidence cannot be sustained. La. Code, 1640.
The defendant next objects that although the will may be null and void, yet the court erred in deciding that all the proceedings which had taken place under it, were null and void. We agree with the defendant that there was error in ° so decreeing, if by such a decree it was intended to decide that all the purchases made at a sale ordered by the court, *106Were of no effect and confei’red no title. We doubt extremely the correctness of such a position, and we are clear no such decision could be made, unless in a case where the third parties who had obtained an interest in the property were before the court. We think the proper decree would have been to direct the executor to render an account of what he had done under the will, which the court set aside; to have ordered him to bring into court all the moneys he had received of the estate, and all the securities and obligations which he had obtained under the sales made by order of the court or otherwise, and to have reserved the question, whether he was not responsible for any damage which the plaintiff may have sustained, in consequence of his persisting to act under the will and sell the property of the estate, after suit was commenced to have that will set aside.
The plaintiff complains of the judgment below in two respects, and has prayed that it may be amended.
The first is, that the court ordered the defendant to bring the money, etc., of the estate into court, instead of ordering it to be paid over to the plaintiff.
The second is, that the estate was burthened with the costs incurred by this suit.
The defendant objects to the right of the plaintiff to receive the proceeds of the estate; that by his own showing there is a previous will, and that it is to the executor or executors of that will the proceeds should be paid over.
As the present defendant has no right to retain the property of the succession, and must at all events bring it into court, it would seem no concern of his to make opposition to the plaintiff’s right to receive it. He does not represent the executors of the first will, nor the collateral heirs. However, the judgment rendered below, compels us to inquire into the plaintiff’s right.
We think the co urt did not err. The plaintiff has referred us to the 921st article of the Louisiana Code, which permits the natural child to be put in possession of the effects claimed by him as heir on giving security. But in the present instance he claims expressly as legatee under an universal title, and *107there appears to be others to whom bequests are made in the same testament. We think the executors of that will, or in case of their neglect to act, a dative testamentary executor should carry its provisions into effect. What may be the right of the plaintiff in case he renounces all the benefits confered by the will, and should hereafter claim the property as heir, we need not inquire.
An estate is lia-bie for the costs cx^tor,unde™ mía doavoring to sus tain its validity, Í tothecourtmaac-miíúLftioñ* to bring into court an the moneys and credits of the es-tata in Ms hands,The remaining question relates to costs. The plaintiff contends the estate should not be responsible for them, as the will was not that of the deceased. We think it ought, . . the costs were incurred m this case m consequence ox the act of the testator, and it was the duty of the executor to maintain the validity of the will.
It is, therefore, ordered and decreed, that the judgment of the Probate Court be reversed, and it is further decreed and adjudged, that the order of the Court of Probates, bearing date the 24th January last, directing the registry and execution of the will of the late Phillippe Sterlin, passed before Carlile Pollock, notary public, be rescinded; that said will be declared null and void; that the defendant, Celestin Gros, do render to said court a full and complete account of his administration under said will, and that he bring into court n i . , . - , _ 1 - all the moneys m his hands belonging to the estate, and all ° ° ’ the notes and securities which he may have received from the sale thereof, or which otherwise have come into his hands; and it is further decreed, that the will made before Marc Lapille, on the I9th October, 1823, be declared valid as the last will and testament of the said Phillippe Sterlin. The costs in both courts to be paid by the succession. This decree, however, being without any prejudice to any claim which the plaintiff may have against the defendant for damages, which the former may have sustained by the acts of the latter, subsequent to the institution of the suit.