delivered the opinion of the court.
This is an action instituted in the Court of Probates for the parish and city of New'-Orleans, to annul and set aside a will. Madame Durocher, wife of Gaspar Durocher, in her own behalf, and that of the other collateral heirs of the late widow Bernard, obtained a judgment contradictorily with the attorney appointed to represent the absent heirs, and the register of wills, named by the court, dative testamentary executor, under a will of the late widow Bernard and her husband, found among the papers of the deceased, which judgment annulled and set aside said will, on the ground, that it was illegal and void; because the same instrument contained the last will and testament of the deceased Madame Bernard and her then husband; secondly, because the will contained substitutions in relation to the disposition of the property of both husband and wife.
The facts of the case are not denied; but this court is pressed for a decision, and the expression of an opinion on the first ground of the alleged nullity of the will.
On the second ground, the appellants themselves, admit that, as the same instrument contains the last dispositions of the late husband and wife, in favor of the survivor of them, with a substitution in favor of third persons, on the death of the survivor: it is, in this respect, illegal, and its dispositions and provisions expressly forbidden by law.
In regard to the first ground of nullity, it is urged, that at the date of the will, the dispositions it contains might lawfully be included in the same instrument; that, although the law was different at the time of the death of the testatrix; yet her will, such as it stood and purported to be, was legal; since the death of her husband long before her, left the will, as regards her, the will of but one person; as she had, at his death, inherited her husband’s property.
The court has concluded, that as both the appellants and appellees admit the disposition of the property by the will, is a substitution which is now forbidden, by law, and ceased to be legal in this country, on the adoption' of the Civil Code in 1808, it follows, that the Court of Probates decided correctly *234in annulling and setting tlie will aside, on the ground, that contained a substitution. This conclusion renders it unnecessary to express an opinion on the first proposition.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.