delivered the opinion of the court.
The plainsiffs instituted the present action to recover from the defendants the succession of Fran9aise Gabrielle a f. w. c. deceased intestate. They allege and have proved their legitimate descent from Marie Jeanne the reputed natural sister of the deceased and are her grand nephews and nieces. The defendant Fran9aise f. w. c. sets up a claim to the succession as the descendant of the deceased. through Martin her natural son, and claims as natural grand-daughter of the deceased.
In support of the pretensions of the plaintiffs, their counsel relies on the art. 917 of the Louisiana Code. “If the father and mother of the natural child died before him, the estate of such natural child shall pass to his natural brothers and sisters or to their descendants,” coupled with the preceding article which declares that, “the estate of a natural child deceased without posterity belongs to the father or mother who has acknowledge him or in equal portions to the father and mother when he has been acknowledged by both.”
It is contended by the defendant that the word such in the article first recited refers to natural children as described in the preceding article, as being acknowledged by the parents in the mode pointed out by the Code; either by notarial act or the register of birth or baptism; that Gabrielle and Marie Jeanne cannot be regarded as natural sisters and entitled to inherit from each other, unless both were acknowledged by their common parents. He further insists that the capacity to inherit depends on the law in form at the opening of the succession, and that neither Marie Jeanne nor Gabrielle *569could now inherit the estate oftheir reputed father and mother for want of this essential proof of quality, and that consequently Marie Jeanne would be incapable, if she had survived Gabrielle of inheriting her estate, not having the proof of descent which alone would make her for the purpose of inheriting, the natural sister of Gabrielle; and that if Marie Jeanne could not take the estate, neither can her descendants the present plaintiffs.
The anide m °ooll SS the Capacity of heirs to inherit depends on the law in force at the íirae the success" ion is opened.We may therefore lay out of view the intermediate descents and consider the present suit as if Marie Jeanne had survived, and were herself the plaintiff before this court claiming the succession of her reputed sister. The position then maintained by the defendant’s counsel is, that she could not recover because she does not exhibit the authentic acknowledgement by Gorr and Catherine that she and the deceased were their natural children.
The article of the Code which regulates the succession of natural brothers and sisters in relation to each other does not restrict the right to sisters or brothers of the full blood. Whether Marie Jeanne was a full or only a half sister is therefore immaterial. The paternal side may be laid out of view. And the question is then narrowed down to this; is there such evidence that she and the deceased were both daughters of Catherine as to entitle her to the quality of natural sister of Gabrielle, who ever their fathers may have been 1
The Code establishes the principle, that the capacity to inherit depends on the law existing at the time the succession is opeped. “The incapacity of heirs is the absence of those 1. . . 4 qualities required in order to inherit at the moment the sue-He who wants these qualities at this time cession is opened, cannot be the heir.” La. Code, art. 944.
That the evidence shows Gabrielle and Marie Jeanne to have been both natural children of Catharine according to the Spanish law in force before the promulgation of the Code, we have no doubt. The 11th law of Toro required that to be regarded as natural children, there should have existed at fheir birth or conception no legal impediment to the mar*570riage of the parents, and that they should be acknowledged by the father, dispensing however with any formal acknowledgement when the mother lived in the same house with the reputed father and was his sole concubine. Under this law it was considered by the ablest commentators that proof of birth was equivalent to acknowledgement on the part of the mother, and proof of cohabition with the mother as sole concubine tantamount to an acknowledgement of paternity. Gomez ad leges Touri, 91 et seq. 1 Febrero Novisimo, 380 et seq.
the Spanish law in force in this state before the adoption of the proof of knowledgement on the part of the mother of natural children. habitation^°with concubine litantamount to an acknowledgement of paternity- The 221st artitnfciode °provides that the acknowledgement of an illegitimate ciershaH be mdtwowiSTJS the*111 registry6 íf bjiths or baptism. But illegitimate gaily1™ acknowlowed*to^prove scelit^f they aré free and white. in regard to the mateCciiiidraf or m™yymáke‘ proof of their maternal descent, if she is not a married woman,h is urged that the Code has introduced a new rule on this subject and that without the formal acknowledgement by noi;alaa] ac£ or jn tlle baptismal register, the natural child is • _ . . 7 . without capacity to inherit.
Article 221 declares that, “ the acknowledgement of an il9.9.1 doelnroc +W. « i legitimate child shall be made by a declaration before a notary .‘in public and two witnesses whenever it shall not have been * made in the registering of the birth or baptism of such child. If this article stood alone we should perhaps be compelled to - _ say, that the subsequent articles under the head of successions, J 1 ^vhich tbe due acknowledgement is spoken of, referred to tMs asthe sole and exclusive evidence of natural descent and that whatever may have been the condition or rights of the par^eg un(qer tlue previous legislation of the country, their right to inherit as natural children under the Code would depend upon their furnishing this exclusive evidence of their capacity. But this article does not stand alone. Article 226 provides that “ illegitimate children who have not been legally acknowledged may he allowed to prove their paternal descent provided they be free and white;” and with respect to the mother article 230 declares that “ illegitimate children °f every description may make proof of their maternal descent, provided the mother he not a married woman.” The article 227 is substantially a re-enactment of the law of Toro _ . above referred to. A he words used in article 221 are not prohibitive, and so far from declaring that a declaration before a notary'shall he the only proof permitted, the Code expressly permits other modes of proof both of paternal and maternal descent without any restriction as to the purpose for *571which it may be allowed. Although there may be cases in which the child may prove his paternal descent without being entitled to inherit, as in cases of adulterous bastards, who may be entitled to alimony, yet as relates to the mothers the rule under the law of Toro was different and the child born out of marriage whether spurious or natural, whether by an acknowledged or unknown father, “ salvo si los tales hijos fueren de damnado y punible ayuntamiento,” were called to her inheritance to the exclusion of all except her legitimate children. 11 Toro, 4 Martin Rep. 265, Pigeau vs. Duvernay.
wime a person mcr he is cap-£y %™áuonVI of testament but not by inheritance,Even under the Code Napoleon which contains enactments much stronger than ours, it seems to be the general opinion of commentators that proof of maternity may be made in all cases, and that this forced acknowledgement has the same effect as the voluntary one in authentic form. 3 Duranton, 235, 236, 253, 2 Toullier No. 940, 950, 4 Favard de L' Anglade, 742, 2 Chabaud des successiones, 342.
We are therefore of opinion that Marie Jeanne and Gabrielle are proved to have been natural sisters, and capable of inheriting from each other, and that the plaintiffs are entitled-to recover unless the defendant shows herself descended from Gabrielle and capable of taking the inheritance at the time the succession was opened.
It is not necessary to inquire whether the defendant has shown by sufficient evidence that she is the child of Martin, the son of Gabrielle. Martin, it is shown, was born a slave and died in that condition in the lifetime of his mother. The defendant herself was originally a slave but emancipated by the will of her master, and her freedom to be complete as soon as the existing laws would permit. She then became statu liber, and at the death of Gabrielle she had not attained the age of thirty. While she continued a statu liber she was capable or receiving by donation or testament, but not by inheritance. Civ. Code, art. 193, 176.
. i,/» The plaintiff further claims two lots of ground in the faubourg La Course in possession of R. Toledano, who was made a party. He answers that he purchased two lots of the defendants and alleges that they had a good title. The *572inventory shows that the defendant declared, that Gabrielle was in her lifetime owner jointly with Marie Jeanne and Gabrielle Lorio, f. w. c. of three lots in that faubourg which had been bequeathed to them by Gabriel Lorio. They then exhibit the testament of Gabrielle and a partition between the defendants and Marie Jeanne, in which the defendant assumes to act as the sole heir of Framjaise Gabrielle and by which two of the lots were assigned to the defendant as the share of Gabrielle. If we were now to decree the two lots to the plaintiffs it would admit va^ity of the partition; and if we were to regard the Petition as null for want of sufficient parties we should be deciding on the rights of those who are not before the court, The will of Gabriel Lorio does not mention any town lots, and the plaintiffs furnish no other evidence of ownership in Gabriel Lorio than the declaration of the defendant. If the plaintiffs have any right it is to one undivided half of the three lots. It is besides very questionable whether heirs by irregular succession can maintain an action against third persons before their own right to the estate has been judicially recognised. La. Code, art. 919.
a partition Armed*or^anmíí" the pm*ti°sUtto "it couíí. bef°*e theThe District Court gave judgment generally for the plaintiffs without expressly pronouncing on the rights of the defendant Toledano, and the parties have agreed that in this court the judgment should be considered as to him as one of non-suit. We think the plaintiffs have not shown sufficiently a legal title in themselves to entitle them to recover in this case, and that the judgment in favor of Toledano as in the case of a non-suit ought to be affirmed.
It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs, and that there be judgment in favor of R. Toledano as in the case of a non-suit, with costs as to him.