delivered the opinion of the court, Porter, J.' being absent.
The plaintiffs claimed, as the children and heirs of H. Fletcher, deceased, a tract of land, part of their ancestor’s estate in the defendant’s possession. He pleaded the general issue and title in himself, and called his vendee in warranty.
The plaintiffs were three in number; two of them (twins) were born before the marriage of their parents, the other since; the father had by will, instituted the mother and plaintiffs his heirs.
Two of them alleged they were legitimate, and the third that she was a legitimate daughter; and if not forced heirs claimed as testamentary ones.
The District Court was of opinion there was no doubt from the manner in which the marriage of the plaintiffs’ parents had been celebrated, that the formalities required by law had not been attended to. Judgment was thereon given for the defendants, and the plaintiffs appealed.
A cause will be remanded if the plaintiffs claim property as forced heirs, and if not, then testamentary heirs, and the court below decided only upon their claim as forced heirs. Cuvillier, for appellants. Hiriart, for appellees.The counsel for the appellants has urged, that the petition states the plaintiffs are children and heirs, and evidence of their birth, even unaided by the subsequent marriage of Fletcher, proves them to be his children, and his will in their favor establishes them to be his heirs.
We think with him the District Court erred; the judgment, if its conclusion was right, and the plaintiffs claimed as legitimate children and forced heirs only, ought to have been a judgment of non-suit at most; but as they claimed as heirs generally, and they have attempted to claim under a will, which the law authorised them to do; the father leaving no legitimate descendants, the District Court ought to have proceeded to examine their title under it.
The remanding of the case has not been opposed by the defendant’s counsel.
It is, therefore, ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed, and the case remanded for a new trial.