On Rehearing.
Nicholes, C. J.A rehearing was granted in this case, touching that portion of the judgment of this court herein before rendered, amending the judgment of the District Court, in respect to the legacies made in the will of Mrs. Sarah A. Erith, in favor of May Pearce, and Minnie and Sadie Erith, by which amendment the legacies in favor of those persons were reinstated and maintained.
*195The present suit was instituted by Mrs. Annie T. Frith, widow of Thomas P. Frith (a deceased son of Sarah A. Frith), in her capacity as natural tutrix of the minors, Alba G. Frith, Edwin T. Frith and Eleonora Frith, issue of her marriage with Thomas P. Frith. In her petition she recites the fact of the death .of Mrs. Sarah A. Frith, and that she left an estate aggregating in value more than five thousand dollars. That she had left certain persons (whom she names) as her forced heirs; that she had made what purported to be a last will and testament by public act (which instrument she described), by which said instrument she disposed of her estate, and that said will had been probated.
Plaintiff averred the said will to be absolutely null and void for want of the observance of the legal formalities, and she attacked the judgment probating the same.
She averred that the bequests to Minnie and Sadie Frith, who inherited by representation through their deceased father, Charles E. Frith, and May Pearce, inheriting by representation, through her deceased mother, Minerva Pearce, all of whom were forced heirs, were null and void for the reason that the will did not desdóse that the testatrix intended said legacies being bequeathed to said forced heirs, to be over and above thier legitime or over and above the legitimate portion of her other heirs as provided bylaw.
Should the court be of opinion that the judgment probating the will, was correct, she averred that said forced heirs, Minnie and Sadie Frith and May Pearce, were estopped from (availing themselves of) the probating of the will, for the reason that said heirs, appearing and acting through their representatives and tutors, Mrs. Annie T. Frith and W. O. Pearce, participated in the partition of the estate of the testatrix, Mrs. Sarah A. Frith, after her decease, and after the existence of said will and its contents had been brought to their notice and that of said representatives. That there was a legal and judicial partition of said estate among the said heirs, under the advice of family meeting, in which each heir was allotted his share, and that said will was treated by said heirs, legatees and family meetings as null and void, and the said legatees renounced whatever interest they might have had in and to said will, by participating and acquiescing in said partition. That the property bequeathed to Minnie and Sadie Frith and May Pearce and Mrs. Marshall exceeded by far the disposable part of said estate, and the bequests deprived the forced heirs of their legitime. Petitioner prayed for the citation of Minnie and Sadie Frith, through their tu*196trix, Mrs. Annie C. Frith, and May Pearce, through her tutor, W. O. Pearce, and Mrs. Verlinda Marshall, who was one o fthe special legatees in the will, and that there be judgment decreeing the last will and testament of Sarah A. Frith to be null and void and of no effect, and the heirs be allowed to retain their title and possession by virtue of the partition already made. She further prayed that should the will be upheld that the legacies to Minnie and Sadie Frith and May Pearce be declared nullities for the reasons set forth, and that said heirs and legatees be ordered to collate the same back to said succession for legal and equitable division, and in the event said will should be upheld in toto, that said legatees be ordered to contribute back info said succession sufficiently that the minor children of petitioner, who are forced heirs, might inherit and receive their legal portion.
Petitioner filed an amended petition, praying for citation upon May Pearce, directly, inasmuch as in. framing her petition she was ignorant of the fact that said minor had been emancipated; she prayed that service of the amended petition be made upon the other parties. •
The defendants, alleging that plaintiff’s petition contained various demands, which could not be cumulated, moved the court to order them to elect upon which of them they would proceed. ,
They afterwards answered, pleading first the general issue; they then admitted the execution of the will'and its probating, and averred the same to be legal. They averred that the plaintiffs, by the institution of the suit were thereby estopped from setting up an estoppel. They denied that the bequests made by the will exceeded the portion disposable by law by the testatrix, or that a decree reducing the same could be made in the pending proceeding. Further answering, they averred, should the court decide that the plaintiffs were not estopped by the institution of the suit from pleading estoppel against the defendants, May Pearce and Minnie and Sadie Frith, then that they were minors at the time of said partition, and, therefore, were not estopped by reason of said partition proceedings from asserting the validity of said last will and testament.
Mrs. Verlinda Marshall denied that she was a party to the act of partition. Defendants prayed that plaintiffs’ petition be dismissed and their demands rejected, and for all necessary orders and decrees, and for general relief.
Minnie Frith, one of the defendants, died, after having married Williamson Hynsón. She left a son, W. Ringgold Ilynson, who was made a party, through his father, his natural tutor.
*197On the 9th of Junaury, 1900, the court rendered judgment, declaring that “the law and the evidence, being against the demand of the plaintiffs, and in favor of defendant, Mrs. Verlinda Marshall, it was by reason thereof, adjudged, and decreed, that the last will and testa-; ment of Mrs. Sarah A. Frith, deceased, attacked in this suit, be recognized as a valid and legal nuncupative will under private signature, and that the bequest made in said testament to the defendant, Mrs. Verlinda Marshall, be recognized and enforced, and that she is hereby decreed to be the owner of twenty-five acres of open land on the Talbot place. It is further ordered, adjudged and decreed, that the legacies and bequests made by said testatrix, Mrs. Sarah A. Frith, by her said last will and testament, to defendants, May Pearce, Sadie Frith and Minnie Frith (the said Minnie Frith being the deceased wife of Williamson Ilynson, and who is herein represented by her said husband, in his capacity of natural tutor, of W. Binggold Ilynson, his minor son, issue of his marriage with saidMinnie Frith) are severally and respectively null, void and of no effect, and said legatees are debarrd from inheriting legacies under said will by reason of their renunciation and abandonment of said legacies, and their acceptance of their respective shares in the succession of said Mrs. Sarah A. Frith, as her heirs at law.
The following entry appears in the minutes of the District Court of the 16th January, 1900, Judge Couvillon presiding.
“Mrs. Annie T. Frith, Natural Tutrix, versus
W. O. Pearce, Tutor, et al.
On motion of plaintiff’s counsel,, made in open court, an appeal is granted in this cause, made returnable to the Supreme Court of Louisiana at its next regular session, to be held in the City of New Orleans, on the third Monday in April next, on her furnishing bond in the sum of one hundred and fifty dollars, for a devolutive appeal, and in the sum of five hundred dollars for a suspensive appeal.”
On the 16th of January, 1900, the plaintiff executed an appeal bond in favor of the clerk of court, in the sum of six hundred and fifty dollars. The bond declares that, “whereas the above, Mrs. A. T.- Frith, tutrix, has taken a devolutive and suspensive appeal', made returnable to the Supreme Court of Louisiana, from a certain final judgment rendered against her in the District Court in and for the Parish of Avoyelles, in favor of Mrs. Hardin Marshall, in said Number 9230 of the *198docket of said court, entitled Annie T. Frith, Tutrix, vs. W. O. Pearce, Tutor, et al., therefore, etc.”
When the record was lodged in the Supreme Court, William O. Pearce, natural tutor of May Pearce, Annie C. Erith, natural tutrix of Sadie Erith, and Williamson Hynson, natural tutor of W. Ringgold Hynson, and May Pierce, answered this appeal, praying that the judgment appealed from be amended, in so far as it annulled the legacies made to May Pearce, Sadie Erith and Minnie Erith.
The judgment of this court, in this case, which we are asked to reconsider, was rendered under these pleadings and circumstances. It is pressed upon us, that we should not have amended the judgment upon the application so to do. ,
It is claimed that the plaintiff’s appeal was simply from that part of the judgment which was adverse to their claims; that their appeal did not bring up that portion of it which annulled the legacies to May Pearce and Sadie and Minnie Erith; that these parties could have appealed themselves, if they were dissatisfied with the judgment, and could not seek relief therefrom by a prayer for an amendment. We are asked to alter our judgment in so far as it amended the judgment of the District Court, touching those particular legacies.
Opinion.
Appellant complains that this court erred, in amending the judgment appealed from at the instance and on behalf of Sadie Erith and May Pearce and Ringgold Hynson. She insists that the only appeal taken- by herself was from the judgment rendered in the District Court, in so far as it was in favor of Mrs. Marshall; that she did not intend to, nor did she appeal from the judgment, in so far as was against Minnie and Sadie Frith and May Pearce; that she certainly would not appeal from a judgment favorable to herself. An examination of the record discloses that the order for an appeal, following the language of the motion therefor was general; it did not refer to any particular part of the judgment, nor to the judgment, as it was in favor of or against any particular person. Appellant followed up the order of appeal by-executing an appeal bond in favor of the clerk of court, and so perfected her appeal as applied for. All the parties to the action) were, by these proceedings, made parties to the appeal. Appellant insists however, that the recital found in the condition of the bond, shows that the judgment she appealed from was the judgment against herself *199in favor of Mrs. Marshall. We do not think the scope of anappealtaken in manner and form as this was, followed by a bond in favor of the clerk of court, can be narrowed by a recital, such as the appellant relies on. The proper place to ascertain what appellant has appealed from, is the motion for the appeal, and the order granted under it. Any other course would be misleading, and might be greatly injurious to the other litigants. Appellant says that she can not legally be supposed to have appealed from a judgment favorable to herself. That statement is too broad. We have on several occasions sustained appeals of that character. A judgment may be apparently favorable to a person, and yet be, for some reasons, unsatisfactory to him. If she appeals from the judgment, the appellant is not called upon to enquire what the reasons may be for her conduct. We do not mean to say, that a person may not in some particular case so limit his prayer for an appeal as to control its extent. That is a matter unnecessary for us to discuss at length; but that particular course was not followed in this case. We think that this right to limit the scope of an appeal to a part of a judgment, if it exists, is subject itself, to limitations. If a person suing for five thousand dollars, obtains a judgment for twenty-five hundred dollars, he can not limit his appeal to the portion of the judgment against him; he can not split up his cause of action. When he appeals he brings the judgment up as an entirety and takes the risk of opening the door for the other side to have the judgment amended.
Appellees took considerable risk in this case by not appealing themselves. The situation of the parties to this litigation was this: Mrs. Sarah A. Frith executed a will in 1892, in which she made special legacies. 1st. Of one hundred acres of land on-the Talbot place, to May Pearce. 2nd. Of fifty acres of cleared land on the Talbot place, to Minnie Frith, and a like quantity to Sadie Frith. 3rd. Of twenty-five acres of open land on the Talbot place, to Mrs. Marshall.
The legacies were definite as to the quantity of the lands bequeathed, and as to the plantation on which they were to be taken, but indefinite as to their precise location.
This will was admitted to probate at the instance of Mrs. Marshall, by an ex parte proceeding.
Notwithstanding this probate,the legal heirs of Mrs. Sarah A. Frith proceeded to a partition among themselves of the Talbot place.
Mrs. Marshall was not a party to this partition. The partition wa3 *200made on the advice of counsel that the will was null and void for want of proper form.
It is quite likely that the will would thereafter have disappeared from further consideration, had it not been for the present suit. The appellees in this suit had taken no steps whatever, so far as the record shows, to claim anything under the will, nor to contest the binding force of the partition. ,
The plaintiffs seem to, however, have been dissatisfied with the situation and apprehensive that an attack from some quarter, (probably from Mrs. Marshall) would be made upon the partition, and without waiting for this attack, they took the initiative and brought the present action against Sadie and Minnie Frith, May Pearce and Mrs. Marshall, claiming that the former were estopped from contesting the partition and by their conduct were estopped from taking anything under the will. Plaintiffs’ main solicitude, it would seem, was to save the partition title from being set aside; the prayer of their petition being that “the will should be declared null and void, and that the heirs be allowed to retain their title and possession by virtue of the legal partition already made.”
Assuming the possibility of the District Court’s maintaining the will, plaintiffs prayed in the event of judgment to that effect, that the special legacies to' Minnie and Sadie Frith and May Pearce be declared nullities for the reasons set forth in their petition, and that the said heirs and legatees be ordered to collate the same back to said succession for legal and equitable division, and should the will be upheld in toto, they prayed that the said legatees be ordered to contribute back into said succession sufficiently for the plaintiffs, who are forced heirs of the deceased, to inherit and receive their legal quantum. Mrs. Marshall was made a party defendant in the case.
The suit, as we have seen, terminated in the District Court by a judgment in favor of Mrs. Marshall, recognizing the validity of the will of Mrs. Frith, recognizing Mrs. Marshall to be entitled to the legacy made to her therein, and further decreeing the legacies to Sadie and Minnie Frith and May Pearce to be severally and respectively null and void and of no effect, and said legatees debarred from taking anything under said will, by reason of their renunciation and abandonment of said legacies, and the acceptance of their respective shares in the succession of Mrs. Sarah A. Frith, as her heirs-at-law.
This is the judgment from which plaintiffs appealed, and to which *201Sadie and Minnie Frith and May Pearce asked an amendment. The judgment heretofore rendered by this court affirmed the judgment of the District Court, sustaining the validity of the will and amended it so as to maintain and reinstate the legacies in favor of Minnie and Sadie Frith and May Pierce. ■ •
We refused a rehearing, in so far as the validity of the will was concerned, and granted it on the other branch of the ease, our main object being to ascertain whether, under the circumstances of the case, Sadie and Minnie Frith and May Pearce were entitled to ask and have accorded to them an amendment of the judgment.
Looking over the entire situation we find that Mrs. Marshall had obtained a judgment recognizing her legacy of twenty-five acres of land on the Talbot plantation, and that she was not a party to the partition proceedings, which plaintiffs seem to be apprehensive may be attacked. So far as the record shows, Mrs. Marshall is in a legal position to question the partition. Should she attack it, all parties should get the benefit of the rescission. A partition ought not to stand as to one and be set aside as to another .(C. C. 1412).
Whether 'the plaintiffs would not be as much protected without this suit against any attack on the titles conveyed in the partition proceedings, wherein Minnie and Sadie Frith and May Pearce were parties, as legal heirs, by so appearing, as they would have been as holding an additional legacy under the will, and -whether this suit would aid them in this matter, may well be questioned. Zeigler vs. Creditors 49 Ann. 170; Benton and Milliken vs. Sentell 50 Ann. 877.)
The different demands made by the plaintiff in her pleadings, original, alternative and contingent, are so connected with each other and the rights of the appellees herein are so interlaced with those of Mrs. Marshall and the other heirs that it is difficult to separate them, and we think that Minnie and Sadie Frith and May Pearce were'authorized to deal with the judgment as an entirety. We think the situation is so involved, and so much out of the usual order, that justice to all parties would be best observed by affirming the judgment of the District Court, in so far as it recognized the validity! of the will of Sarah A. Frith, and by setting it aside, in so far as it decreed the “legacies made to Minnie Frith and Sadie Frith and May Pearce, to be severally and respectively null and of no effect, and said legatees debarred from inheriting said legacies under said will by reason of their renunciation and abandonment of said legacies, and their acceptance of *202their respective shares in the succession of Mrs. Sarah A. Frith as her heirs at law,” and by reinstating the legacies made by the said will to Minnie and Sadie Frith and to May Pearce, but leaving open to all parties for contest and adjudication in the future their respective rights and obligations under the said will, and as heirs-at-law of Mrs. Sarah A. Frith, except in so far as they are all closed by the present judgment.
For the re'asons assigned herein, our former judgment is amended so as, after reinstating the said legacies to Minnie Frith and Sadie Frith and to May Pearce, to leave open for all parties for contest and adjudication in the future their respective rights and obligations under the will, and as heirs-at-law of Mrs. Sarah A. Frith, except in so far as they are closed by the present judgment. As so amended, our former judgment will remain undisturbed.
This causa is remanded to the lower court for further proceedings according to law.
Provosty, J., takes no part, this case having been submitted prior to his taking his seat on this bench.