delivered the opinion of the court.
In this case the plaintiff sues as heir of his late wife, to recover from the defendant, as the executrix of his wife’s mother, the portion which his wife inherited from her mother. The plaintiff obtained judgment in the Court of Probates, from which the defendant appealed.
The appellant in this court, relies upon the following assignment of errors:
1. There is no evidence of the death of the plaintiff’s wife.
2. The document annexed to the petition, is illegal evidence of her will, being the copy of a copy. The will does not appear to have been presented to the Court of Probates, nor its execution ordered; and because the document appears to be in fact no will, as it contains no mention that the legal formalities were complied with, without interruption or turning aside to other acts.
3. The suit is wrongfully brought for an account of the estate, instead of the plaintiff claiming to be recognised as heir of his wife.
4. The defendant had nothing to do but to file her account, and the plaintiff ought to have filed written objections to any exceptionable item found therein.
Where the plaintiff sues as heir of his wife, and his capacity to sue not being denied by the pleadings, he was not required to prove his wife’s death. Civil Code of 1808, required all the formalities in a will to he complied with, before turning aside to other acts, hut did not require mention of these in the will. Irregularity and impropriety in the form of action is waived, by pleading to .the .merits, and proceeding to trial without making the objection. Judgment will be reversed, where interest is' allowed on an unliquidated claim.5. The Probate Court erred in refusing to allow the funeral expenses, and in allowing interest.
I.The plaintiff in this case sued as heir of his late wife, and his capacity not being denied by the pleadings, there was therefore, no necessity to prove the death of his wife, without which he could not be her heir. Nemo est hares vívente s.
II. It appears from the record, that no opposition was made in the Probate Court, to the admissibility of the document annexed to the petition, in evidence, which is now objected to in this court.
The former Code required indeed, that all the formalities in a will should be complied with, without any interruption, and without turning aside to any other acts ; but it did not require, that mention of this circumstance be made in the will. Civil Code, art. 92, p. 228.
III. In relation to the manner of bringing the suit, any impropriety or irregularity in the form of the action was waived, by pleading to the merits, and proceeding to trial without,making the objection.
IY, Y. The plaintiff charged the defendant, as executrix of his late wife’s mother, claiming the portion she inherited from her said mother.
The defendant filed an account, and the court gave judgment for the balance, after striking off such items as were unsupported by proof. Interest was however, in our opinion, improperly allowed. The sum claimed was not liquidated, until ascertained by the judgment of the court. In this respect only, the judgment of the Probate Court is erroneous.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed; and the plaintiff recover from the defendant the sum of nine hundred and thirty-four dollars and sixty-two cents, with costs in the Court of Probates; and that the costs of the appeal be borne by the appellee.