On Eehearing.
Monroe, J.The facts of this case will be restated for convenience of reference, in connection with the opinion which follows:
*564In 1882, Oliver Beirne was recognized as the universal legatee of John Burnside, and, in that capacity, was put in possession of a number of sugar plantations and other property in Louisiana, the value of which may be roughly stated at $500,000. If Mr. Beirne had then died intestate,. the property so acquired, together with certain property on Bourbon street, in New Orle'ans, of which he was already the owner, would have fallen to his daughter Mrs. Von Ahlefeldt; to Susan Beirne Robinson, only child of his daughter Susan, deceased wife of Henry Robinson; and to the six children of his daughter Elizabeth, deceased wife of Wm. Porcher Miles, in the proportion of one-third to Mrs. Von Ahlefeldt, one-third to Susan Beirne Robinson, and one-third to the Miles children. And, whether he died testate or intestate, the persons mentioned above were his forced heirs to the extent of two-ninths of said property to each branch. Mrs. Von Ahlefeldt was, however, a widow, without children, and Susan Beirne Robinson was a child, about elfeven years of age, who had been a hopeless mental and physical imbecile from her birth, and was, therefore, incapable of enjoying a large inheritance, but was likely soon to die and to leave any property which she might acquire to her father, 'or, in the event of his death, to her aunts and uncles, of whom five were upon the paternal side, and but one, Mrs. Von Ahlefeldt, was upon the maternal side. So that the Miles children were the only persons who were capable of both enjoying the fortune of Mr. Beirne and of handing it down to a common posterity. Such being the situation, Mr. Beirne, who had his own home, together with large interests, in West' Virginia, placed his son-in-law, Wm. Porcher Miles, in charge of his Louisiana estate, and that gentleman established thereon a home for himself and his children. Thereafter, in August, 1885, Mr. Beirne entered into a contract with his other son-in-law, Henry Robinson, whereby he agreed to pay him $100,000, in cash, and to provide for his imbecile daughter, Susan Beirne Robinson, during her life; in consideration whereof, Robinson relinquished the guardianship of thd child, and sold to Beirne a certain farm, known as “Walnut Grove,” and further agreed and stipulated as follows, to-wit:
“And for and in consideration of the sum above expressed he, for himself, his heirs and executors, hereby sells, conveys, and relinquishes to Oliver Beirne, and to his heirs and executors all right, title, or claim that he now has, or may hereafter have by his being the father of Susan Robinson, who is also the granddaughter of said Oliver *565Beirne, to any and all property, both real and personal and mixed, wherever situated, including all real and personal property heretofore described; but especially that real estate and personal property and choses in action in the respective States of Louisiana and West Virginia. It being intended that if said Oliver Beirne should die before the party of the first part, the said Henry Robinson, or the said Susan Robinson, then, in that event, said Henry Robinson hereby relinquishes and releases to said Oliver Beirne, and to his heirs, all right, title or claim he has, or might have, by virtue of being the father and natural guardian of said Susan Robinson.”
It is shown that this contract was executed in so far as it was capable of being executed at that time; that is to say; Oliver Beirne assumed the care of his imbecile grand-daughter; took possession of Walnut Grove; and paid over to Henry Robinson the $100,000 as agreed on; and Henry Robinson surrendered the child and the farm, and went elsewhere to live upon the income of the money which he thus received. It is also shown 'that Walnut Grove Farm had been given by Oliver Beirne to his daughter, Mrs. Robinson, in 1868; that, in 1869, Mrs. Robinson had made a will leaving all of her property to Henry Robinson, her husband; that, upon January 25, 1871, she gave birth to Susan Beirne Robinson, and that, upon February 1st following, she died. It further appears that, under the law of West Virginia, the effect of the birth of the child, after the making of the will, was such, that the will was thenceforth to be construed as though the devise to Henry Robiuson had been limited, by its own terms, to take effect only upon the death of said child, unmarried and without issue. Under the same law, however, Robinson’s “curtesy” in the estate of his wife entitled him to a free hold in the land left by her, so that the interest actually acquired by Beirne was the right to use and occupy the property during the life of Robinson, with a fee simple interest, to himself and to his heirs, contingent upon Susan Beirne Robinson dying unmarried and. without issue.
The next step taken by Mr. Beirne in the arrangement of his affairs, was to make his will, which he did upon December 26, 18.85. In that instrument, he says: “First, I have recently purchased from Major Henry Robinson what interest he had in the property known as the “Walnut Grove,” * * * for which I paid him, in cash, $100,000, much more than the property was worth. The consideration being that he relinquished all further claim to my estate that he might have *566through his daughter, Susie Robinson, who is a hopeless imbecile, and, at the same time, turned-over to me the said Susie Robinson to be cared for by me, or my representatives, during her natural life.” Then follow certain dispositions whereby the testator sets apart Walnut Grove Farm and devotes the revenues thereof, or as much as may be necessary, to the support of Susie Robinson; following which are various particular legacies, and among them one of $300,000 to his wife, and one of $200,-000 to Mrs. Von Ahlefeldt; after which the testator proceeds as follows:
“Fifth. I make my grandchildren, the children of Wm. Porcher Miles and his deceased wife, Elizabeth, my beloved daughter, the residuary legatees of my estate, share and share alike, after the first, fourth, second and third sections of this my will are provided for, then tha remainder of my estate to be paid over to the residuary legatees, or divided equally amongst them when the youngest shall have attained the age of twenty-one.”
Then follow certain directions which are unimportant here; a clause naming his son-in-law, Wm. Porcher Miiles, Hugh Caperton and William Gaston Caperton, as his executors, another dispensing said executors from furnishing bond; the signature of the testator, and the date, after which is the following:
“Codicil. I have paid my son-in-law, Wm. Porcher Miles, for attending to my business in Louisiana, $5000 per annum, and I recommend my daughter to continue the said amount to the said Miles, and
1 would further advise its continuance until the estate is finally wound up in accordance with this will.”
(Signed) “Oliver Beirne. Date as above.”
Upon January 21st, 1886, a little less than four weeks after the making of this will, Mr. Beirne executed a deed purporting to convey to Mrs. Von Ahlefeldt all the immovable property which he owned in Louisiana, with the exception of that on Bourbon street in New Orleans, for the sum of $1,000,000, represented by ten promissory notes, of $100,000 each, payable, two at a time, in from one to five years, with interest at the rate of four per cent per annum from date until paid, and secured by mortgage on the property. Mrs. Von Ahlefeldt, as has been stated, was a widow lady. She had been twice married, and had no children,'and the record authorizes the statement that *567she was without knowledge or experience of sugar planting or other business, and, practically, without capital. It is true that she owned some grazing land in West Virginia, which was worth about $15,000, but which yielded no revenue. And she testifies that she had an interest, valued by her, in vague terms, at about $30,000, in the estate of her deceased husband; but we infer that the estate in question is an unsettled one, possibly in Germany, and that the asset is entirely unavailable for business purposes. Upon the other hánd, the sugar planting business, in which she apparently embarked, requires both knowledge and experience for its successful prosecution, and the evidence shows that, in this particular instance, it required a cash disbursement of over $500,000 between the date of Mrs. Von Ahlefeldt’s supposed purchase and the close of the season, when the first sugar from the crop of 1886 was ready for the market. So that, in addition to the obligation of paying, in principal and interest, the sum of $208,000, at the end of twelve months, on account of the purchase price of the property, she assumed the further obligation of paying^not less than $500,-000, within the twelve months, to defray the necessary running expenses of the plantations which she had apparently acquired. There has been no attempt to show that Mrs. Von Ahlefeldt, at any time, concerned herself upon the subject of these obligations, or made any provision to meet them. She had no money, she borrowed none, and none was borrowed in her name, and yet, between the date of the supposed purchase and the date at which the property, which was the subject thereof, could have yielded any return, more than $500,000 was required to be expended in its administration. And it was so expended by Oliver Beirne for the most part in Oliver Beirne’s name and entirely without cost to Mrs. Von Ahlefeldt. No change in the management of the property followed .the execution of the act of sale. The same" employees, without even the formality of re-employment, were retained, at the same salaries; and they used the same books for the purposes of the business, which continued to be conducted under Oliver Beime’s direction.
During the four months immediately succeeding the supposed sale, the business was conducted entirely in Beirne’s name, and nearly $250,-000 was paid out, by his checks, for the expenses of the plantations, and for his personal account, indifferently, without charge to Mrs. Von Ahlefeldt. At the end of four months, in the latter part of May, there was a balance of $24,369.62 standing to the credit of Oliver *568Beime’s bank account, and for that exact amount he drew a check which he deposited to the credit of Mrs. Von Ahlefeldt, thereby, for the first time, opening an account in her name. Subsequently, two other deposits having been made to the credit of Mr. Beirne, the aggregate amount of the same was also transferred to the newly opened account of Mrs. Von Ahlefeldt, with the explanatory memorandum on the check book: “This amount transferred to Mrs. Von Ahlefeldt’s account in the Mutual National Bank. No entry to be made as it is only a transfer.” And, thereafter, an effort was made to conduct the business in the name of Mrs. Von Ahlefeldt. But, thereafter, as before, the expense of the plantations and those which were personal to Oliver Beirne were paid, indifferently, from the same fund, which fund was supplied from rents collected for the individual account of Oliver Beirne; from the proceeds of the sales of land owned by him, in Texas; from the proceeds of the sales of his drafts on New York; and from other money furnished by him, between May and November, 1886, to the amount of $280,000. And, if Mrs. Von Ahlefeldt did not appear in the matter of furnishing the money which was placed in the bank lo her credit, equally is it true that she did not appear as an individual beneficiary in the matter of its disbursement. The books show that, from the account kept in her name, Mr. Beirne drew what money he needed; as for taxes on his individual property; for the price of pictures presented by him to the steamboat “Oliver Beirne;” for the laying of carpets at his residence; for paying his wife’s bills; for carriage hire; for physicians bills; for a balance due to one Stewart on a legacy left him by John Burnside, etc., etc.; and they also show that by his authority the Miles family was liberally supplied from the same account. But they do not show that one dollar was ever drawn out by Mrs. Von Ahlefeldt, or was ever remitted to her, or paid out under her instructions, or for her account, save in so far as the disbursements for the plantations are to be so considered. And this applies not only to the period between, the date of the alleged sale, January 21st, 1886, and the end of the'year, but to the whole period, up to January 25th, 1889, of her supposed ownership of the property; during which time no account was ever furnished to her of the business carried on in her name, and it is doubtful if she was ever in the office from which that business was directed. . Her unconcern upon the subject of the enormous amount of money required to operate the plantations of which she appeared to be the owner, and of her outstanding notes, given in payment of the *569purchase price of these plantations, was, however, no greater than was that of her father, who furnished the money required, and who held the notes in question. He never seemed to think that there was any reason for concern upon the part of either of them. On the contrary, when the first two notes, amounting in principal and interest, to $208,-000, were about falling due, he executed the following instrument, which was subsequently probated as part of his will, to-wit:
“Office of Oliver Beirne,
“No. S3 North Peters Street,
New Orleans, January 20, 1887.
“To the Executors of my will—
“Enclosed you will find ten notes, .of $100,000 each, of Nannie Von Ahlefeldt, executed for and in consideration of my Louisiana property. Whenever the said Nannie Von Ahlefeldt shall deed you the Louisiana property for the benefit of my grandchildren, the children of Wm. Porcher Miles, they will deliver you, Nannie Von Ahlefeldt, the enclosed notes.
“Very truly yours,
“Oliver Beirne."
This testamentary letter was written in the office where the business of the “Louisiana property” was transacted, and the rent of which was paid by checks drawn in the name of Mrs. Von Ahlefeldt; and yet, as will be seen, it was styled the “Office of Oliver Beirne.” -During the year 1887, matters went on as they had always done, the only possible connection between Mrs. Von Ahlefeldt and the business of the estate which Oliver Beirne had acquired from John Burnside being the use of her name. She knew nothing about that business and made no effort to learn. In March, 1888, Mr. Eustis, who was immediately in charge, turned over to Mr. Beirne, by the latter’s instructions, the sum of $66,000, which was accounted for by the memorandum on the check book, “no entry necessary, as it is only a transfer.” With this money, Mr. Beirne purchased, at sheriff’s sale, another large sugar plantation, the title to which he had made in the name of Mrs. Von Ahlefeldt, although, aside from her unmatured obligations, amounting with interest, to about $650,000, he then held her notes, past due and wholly unpaid, amounting, with interest, to $432,000. Mrs. Von Ahlefeldt does not seem to have been consulted about this purchase until after it *570was made, when, according to her testimony, being informed by Mr. Beirne that it was a good investment, she gave it her approval.
Upon April 21st, 1888, Oliver Beirne died, and, upon April 27th, following, his will was admitted to probate in the Oireu.it Court of Monroe County, West Virginia, as was, also, a little later, the testamentary letter hereinbefore referred to. The Messrs Caperton, who lived in West Virginia, and who, with W. P. Miles, had been named as executors, duly qualified as such and proceeded to the discharge of their duties. In August, 1888, they filed a bill, in the said Circuit Court, setting forth, in detail, the provisions of the will of their testator and praying the court to give directions for carrying the same into effect. To this proceeding Mrs. Beirne, the widow of Oliver Beirne, Mrs. Von Ahlefeldt, the Miles children, Henry Robinson, Susan Beirne Robinson, and other legatees, were made parties. In March, 1889, the matter was referred to a commissioner, with instructions; (1) to report as to the character of the assets and where situated; (2) to settle the accounts of the executors; (3) to convene the creditors and report as to their claims; (4) to ascertain the amount necessary for the support of Susan Beirne Robinson, the amount already expended on that account since the death of Oliver Beirne, and since the death of Henry Robinson, and by whom expended; and (on motion of Mrs. Von Ahlefeldt) to ascertain and report; (1) whether Oliver Beirne was in possession of Walnut Grove at the time of his death and, if so, whether he had it well stocked with cattle; (2) the average annual income derived therefrom, as conducted by said Beirne; (3) the date of the death of Mrs. Robinson and of Henry Robinson, and of the birth of Susan Beirne Robinson; (4) whether Oliver Beirne was ever legally appointed guardian of Susan Beirne Robinson; (5) whether Susan Beirne Robinson was an imbecile at the date of the conveyance from Henry Robinson to Oliver Beirne, and whether such imbecility is permanent.
And, the commissioner having made his report, there was judgment, June 6th, 1889, to the following effect, to-wit:
“1. That, by his contract with Henry Robinson, of August 12th, 1885, Oliver Beirne had bound himself for the support of Susan Beirne Robinson during her life, and that his estate remained so bound; and hence, that the particular provisions upon the subject of such support, as contained in the will, should be declined inasmuch as the estate of said Oliver Beirne had no interest in Walnut Grove, the property *571dealt with in those provisions. The judgment then proceeds to hold that Oliver Beirne’s executors should dispose of the personal property at Walnut Grove as they would of any other property belonging to the estate of their testator; that the should annually pay such sum as might be necessary for the support of Susan Beirne Eobinson; that should Susan Beirne Eobinson die unmarried and without issue, and Mrs. Ahlefeldt survive, the latter should take Walnut Grove, in fee simple; and that should Mrs. Ahlefeldt not survive, Walnut Grove should go, in fee simple, to the heirs of Oliver Beirne.
In this litigation, Susan Beirne Eobinson was represented by Mrs. Yon Ahlefeldt, as guardian, and the decree of the Circuit Court was affirmed by the Supreme Court in April, 1890, with a correction which is not material here.
Beirne’s Executors vs. Beirne et als., 33 W. V. 663.
In the meantime, and whilst said suit was pending, the executors had proceeded with the settlement of the estate, with respect to some matters which were not involved in said suit, and had turned over to the Miles children the ten notes signed by Mrs. Yon Ahlefeldt. Thereupon, considerable negotiation ensued between the parties mentioned, for the purposes of which the property in Louisiana, standing in the name of Mrs. Ahlefeldt, and including the plantation which had been purchased by Mr. Beirne, was appraised by Mr. Eustis, who valued the plantations at $462,000, to which was to be added the value of the residence in New Orleans, bringing the total estimate to about $500,-000. Eventually, and apparently by means of concessions on the part of the Miles heirs, an agreement was arrived at, and reduced to the form of an authentic act, whereby Mrs. Yon Ahlefeldt conveyed to the said heirs the whole of the property covered by the deed from Oliver Beirne to her, as also the plantation subsequently bought in her name, upon the terms and for the consideration as expressed in the following recital, to-wit:
“Whereas the parties of the first part are heirs and residuary legatees of Oliver Beirne, * * * and whereas, as such residuary legatees, they are the owners of ten promissory notes made * * * by Mrs. Nannie Yon Ahlefeldt * * * each for * * * $100,000; and whereas, the said Mrs. Nannie Yon Ahlefeldt is a particular legatee of the said Oliver Beirne * * * in the sum of $200,000, and has proposed to said parties of the first part to grant, bargain, sell and convey *572to them, the real estate and improvements hereinafter described, in the State of Louisiana, upon their paying to her the sum of $300,000, as follows, to-wit: $100,000, in cash, at the signing and delivery of these presents, and $200,000 in five equal instalments of $40,000 each, at one, two, three, four and five years, with interest thereon at five per cent, per annum, payable annually, but with the right on the part of the makers of paying any and all of said notes before maturity, in capital and interest accrued to the date of payment, the (same) to be in full payment and discharge of said legacy and of all her rights in the succession of said Oliver Beirne; said instalments to be a special mortgage and vendor’s privilege; and upon the further condition and consideration of the return by the parties of the first part to the party .of the second part of her ten promissory notes of $100,000 each duly can-celled.”
********
“And whereas the said parties of the first part have accepted said propositions of the said party pf the second part, now, therefore, in consideration of the premises, the said Mrs. Nannie Von Ahlefeldt does hereby grant,” etc., etc., (describing the property).
* * * * * * * *
“It is hereby distinctly agreed and understood between the parties that the sale and assignment herein made of the interest and rights of the said Nannie Von Ahlefeldt in the succession of the said late Oliver Beirne does not embrace her interest in the said estate in Monroe County, West Virginia, and known as Walnut Grove, which was devised to the said Nannie Von Ahlefeldt by the will of the said Oliver Beirne, the interest of the said Nannie Von Ahlefeldt in -the said Walnut Grove being hereby excepted from the operation of these presents.”
This instrument bears date January 25th, 1889, at which season, as when the deed from Oliver Beirne to Mrs. Von Ahlefeldt was executed, the year’s crop had been made, and the larger, portion of the sugar which had been obtained therefrom was no doubt on the market. Certainly no part of it was included in the sale; and yet from the proceeds of that crop, which, according to the theory of the defense, belonged to Mrs. Von Ahlefeldt, there was paid: Oliver Beirne’s funeral expenses; the $100,000 which the contract above referred to required should be paid to Mrs. Von Ahlefeldt, herself, a further sum of $100,000 on *573account of the legacy of $300,000 left by Oliver Beirne to his wife; and, finally, the balance of $36,325.69 in bank, to the credit of Mrs. Yon Ahlefeldt, was drawn out by a check for that exact amount, payable to the order of “W. P. Miles, tutor 'and agent,” upon the stub of which was entered the following memorandum, to-wit: “This amount transferred to account of W. P. Miles, agent and tutor; no entry necessary as it'is only a transferAt about the same time that Mrs. Yon Ahlefeldt’s bank account was thus closed and her ostensible connection with the Louisiana property and business terminated, to-wit: about February 7th, 1889, the Succession of Oliver Beirne was opened in New Orleans, and, although the record has been lost, it is satisfactorily established that the following action was taken, to-wit: a petition was filed, in accordance with the prayer of which the will was ordered to be recorded, and Wm. Porcher Miles was confirmed as executor; an inventory was taken, showing the Bourbon street property valued at $17,000; cash in bank $544.80; and household furniture, paintings, etc., valued at $12,449.50, or a total of $39,994.30 of property in the Parish of Orleans, and purporting to be all the property belonging to the succession in the State of Louisiana; the movable and immovable property thus inventoried was sold by order of court (the real estate having been adjudicated to Mrs. Yon Ahlefeldt for $21,-000 cash), and the executor, thereafter, in 1890, filed an account, whereon Susan Beirne Eobinson was recognized as the forced heir of her grandfather with respect to the proceeds of the property so inventoried and sold, and said account was duly homologated, and the money in the hands of the executor was ordered to be distributed in accordance therewith; and it was so distributed, the share of Susan Beirne Eobinson, amounting to $6848.97, having been forwarded to her guardian, Mrs. Yon Ahlefeldt, in West Virginia. It does not appear that the executor was ever discharged.
In November, 1890, the Miles children sold to the Board of Administrators of the Tulane Educational Fund, the New Orleans residence which Mr. Beirne had acquired as part of the Burnside estate, and which had been included in the supposed transfer to Mrs. Yon Ahlefeldt, but which, nevertheless, he had continued to occupy, rent free, until the day of his death, whilst the taxes and cost of maintenance were paid by checks drawn against funds deposited in the name and io the credit of Mrs. Yon Ahlefeldt.
Thereafter, in 1892, the Miles heirs organized a corporation under *574the name of “The Miles Planting and Manufacturing Company, Limited,” and fixed the capital stock at $542,000, divided into 542 shares of $1000 each, of which each of the six heirs took ninety shares and Wm. Porcher Miles and Henry O. Eustis, each, took one share.
The board of directors of the company, composed of Wm. Porcher Miles, Henry O. Eustis, Wm. Porcher Miles, Jr., Betty Miles and Sally Beime Miles, in April, 1892, adopted a resolution reading as follows: “Resolved, That this company do purchase all the property inherited by Wm. Porcher Miles, Jr., Misses Sally Beirne Miles, Betty Beirne Miles, Nanny Miles, Susan Warley Miles, and Margaret Melinda Miles, from their late grandfather, Oliver Beirne, Esq., and from Wm. Porcher Miles, all of said property fully described and set forth in the descriptive list now before the board,” etc. This was followed by an act of sale from the heirs to the company, in which, after a description of the property, there appears the following, to-wit: “All being the property inherited by the vendors from the estate of their deceased grandfather Oliver Beirne, Esq.” To conclude the recapitulation of the facts upon this branch of the case, it may be said that Mrs. Von Ahlefeldt having been paid, in the manner as stated, the $100,000 in cash called for by her contract, has since then been paid the full amount of the legacy of $200,000 which, by the terms of said contract, was to be paid in instalments, and it may also be said that the administration of Oliver Beirne’s estate in West Virginia was closed and his executors, there appointed, were discharged in March, 1896.
Turning to some other matters which, it is claimed, bear upon the questions at issue; Henry Robinson died in October, 1888, and left a will whereby he bequeathed his whole estate, save a few legacies of trifling value, to his sister and brothers, and they received the property so bequeathed and consented to the discharge of the executor, in 1892: The evidence shows that the property in question consisted, almost exclusively, of securities which had been purchased by Henry Robinson with the $100,000 that he had received from Oliver Beirne, and that Walnut Grove Earm represented about one-half, in value, of said $100,000, so that the balance of said amount was money which had been paid to him for the relinquishment of his prospective claims, as the heir of his daughter, against the estate of Oliver Beirne. Susan Beirne Robinson, as has been stated, was bom in January, • 1871, and therefore attained her majority in January, 1892. Oliver Beime was *575never appointed her guardian; but, prior to the fall of 1888, that office seems to have been held by Hugh Caperton, who resigned at the October term of the Circuit Court, and, thereafter, in November, 1888, Mrs. Von Ahlefeldt was appointed in his place, and gave bond in the sum of $15,000. Later on, March, 1891, Mrs. Von Ahlefeldt presented a petition to the court invoking action upon her accounts as guardian; asking' for directions as to her future conduct, and particularly asking that she be allowed to become the lessee of Walnut Grove Farm, which belonged to her ward. In the course of her petition, she alleged that her ward was a “sufferer from an incurable imbecility of mind and body,” and she prayed that the court would “undertake the supervision and direction of the plaintiff, as guardian, and give her all proper instructions and directions in her duties as such, and that her accounts as such be annually settled and reported in this court,” etc. Agreeably to this prayer, the court ordered that the petitioner be permitted to take possession of Walnut Grove “as a renter, from year to year, from the 1st day of November, 1891, at the annual rent of $900, less the taxes upon the said farm,” etc., and that “the said guardian shall make annual statements,” etc. Mrs. Von Ahlefeldt continued to act as guardian of Susan Beirne Eobinson after her majority,- and until her death, which took place January 4th, 1894, when she turned over the balance of assets in her hands to an administrator duly appointed.
The record does not, however, show that the attention of the court was attracted to the fact that Susan Beirne Eobinson was about to attain, or. had attained, her majority, and that she should be interdicted, as required by the law of West Virginia, or that any appointment was made after that event and after notice served upon her. The case, therefore, stands as though a tutor in Louisiana had continued in the tutorship of an imbecile ward after the latter had attained majority, without regard to that fact, and without causing such ward to be interdicted, and the question whether prescription runs in such a case is to be determined upon that basis.
It is only necessary to add, in this connection, that the distributive share from the Louisiana succession which was received by Mrs. Von Ahlefeldt, .for account of Susan Beirne Eobinson, was eventually turned over by her to Allen Caperton, administrator of Susan Beirne .Eobinson, and constituted the greater part of the latter’s estate; and that said estate was duly administered and distributed, the plaintiffs, *576represented by one of their present counsel, who practices in the courts of Monroe County, West Virginia, receiving one-half thereof; that two of the present plaintiffs are minors, children of Samuel A. Robinson, an uncle of Susan Beirne Robinson, who died in November, 1894; and that this suit was filed in April, 1897.
Opinion.
This case came up originally upon an appeal from a judgment maintaining an exception of no cause of action and a plea of prescription of one year, and the judgment appealed from was reversed and the case was remanded, with instructions that the plaintiffs be heard upon the merits. Cox et als. vs. Von Ahlefeldt et als., 50 Ann. 1266.
Eor the purposes of the decision thus referred to, it was held by this court that the plaintiffs, as collateral heirs of Oliver Beirne’s forced heir, Susan Beirne Robinson, succeeded to her rights, and have, therefore, the same right to prosecute this suit that she would have had if she had lived.
'This proposition, we now reaffirm. True it is that the Spanish law. as it existed in Louisiana when the territorial government was organized, only went so far in its terms as to authorize the descendents and ascendents of the testator to bring what was called the querella inofficiosi testamenti, or action to annul the will upon the ground of its being “contrary to the paternal affection and regard which the father ought to have for his child,” or which the child ought to have for the father. Partida Sixth, Tit VIII, Law 1. And if the law makers to whom we are indebted for the Civil Code had thought it advisable, they would, no doubt, have left the law as it was written in the Partida. But they did not leave it so. On the contrary, they framed the law by which we are governed in language which expressly authorizes the bringing of the action to reduce the donations of the testator within the disposable quantum "by forced heirs, or by their heirs or assigns.’’ O. C. 1504. And in this respect, the Civil Code differs also from the Code Napoleon, which authorizes the bringing of such action by the forced heirs, or “par leurs heñtiers ou ayanis cause” the term "ayanls cause” including creditors, a' class not necessarily included in the term “assigns.” O. N. 921; Fuzier-Hermann, Vol. 11, p. 526, No. 11; C. C. 3556, verbo “Assigns;” Tomkins vs. Prentice, 12 Ann. 465.
We have no authority, then, to exclude collateral heirs from the right here claimed because they were excluded by the Spanish law, nor *577to include creditors because they are included under .the French law. Our law, in unambiguous terms, applies to collaterals as well as to ascendents and descendents, and to non-resident as well as to resident heirs; and it confers upon the “heirs or assigns” of the forced heir, in the event of his death, or of his assignment of his right, the identical right of action which he himself possessed. The rights of non-resident-forced heirs have been recognized on more than one occasion by this court. Hoggatt vs. Gibbs, 12 Ann. 770; Same vs. Same, 15 Ann. 700; Atkinson vs. Rogers, 14 Ann. 633; Estate of Lewis, 32 Ann 388. And the application of the term “heirs,” as used in the article cited, to collateral heirs of forced heirs has never been questioned, and we find no reason or authority for holding that' it can be successfully questioned now.
It is urged on behalf of the defendants that this suit is in the nature of a petitory action for the recovery of property, the adverse title to which originates in the donation, to the Miles children, contained in the will of Oliver Beirne, and that it is, therefore, a collateral attack upon the probate of such will, and should not be sustained.
It is further insisted that if it be held that the property in question belonged to Oliver Beirne and fell into his succession, it must follow that it also fell within the donation in favor of the Miles children, and that plaintiffs’ remedy lies in an action to reduce said donation.
These contentions may be said to have been embodied in the exception of “no cause of action,” which was disposed of upon the original hearing, and we are still of the opinion that they are not well founded. The first seems to be equally inconsistent with the theory of the case as propounded by the plaintiffs and with the position of the defendants, as assumed in their pleadings, since neither plaintiffs nor defendants are claiming that the will of Oliver Beirne,' as probated, operated upon the property in controversy, and hence the demand for the recovery of such property involves no attack upon such probate. As to the second, the primary object of this suit is to have it determined that the property in question belonged to Oliver Beirne’s succession, and it is clear that it might be maintained for the accomplishment of that object, as a preliminary to the plaintiffs’ ultimate demand for recovery, even although it had not been united therewith, provided the right of the plaintiffs with respect to such ultimate demand still exists. But, we are of opinion that, whilst the plaintiffs have proceeded upon the theory that they are not called upon to bring any action for reduction, *578the present action, including as it does, a demand, made contradictorily with all the parties in interest, for the recovery of the legitime of a forced heir, in property from which, if subjected to the will of the de cujus, the forced heir would be excluded, is, in effect, an action for the reduction of an excessive donation. “It is clear,” said Martin, C. L, “that where forced heirs are deprived, by will, of their legitimate portion, or less than that amount is given to them, they have an action for the complement of their legitimate part, the effect of which is to cause a reduction of any other disposition made by the testator to the prejudice of said legitimate part. * * * This is an action, accorded to forced heirs, to recover that part of the testator's estate which he may have disposed of beyond the disposable part, against those who have thus illegally acquired it.” (Italics by the present-writer.) Gardner et als. vs. Harbour et als., 5 M. 410.
To the action for reduction, in the event that the court should hold that the instant, suit should be so regarded, the defendants plead the prescription of five years — to meet which, the plaintiffs, through their counsel, invoke the rule, le mort saisit le vif, as also certain rules concerning the rights of forced heirs; and they taire the position, which is stated in one of the briefs on file, as follows, to-wit: “We deem it an impossible anomaly to hold that, when the law has conferred upon us an ownership and possession, and has prescribed that the universal legatee can never disturb them or acquire any rights except by bringing an action against us, that we can be bound to bring an action against them, and that our ownership and right of possession can be destroyed by mere failure to bring such action.”
The argument in support of the view thus stated appeals largely to French authority, but is silent concerning the following Articles of our own Code, to-wit:
“Art. 1502. Any disposal of property, whether inter vivos or mortis causa, exceeding the quantum of which a person may legally dispose to the prejudice of the forced heirs, is not null but only reducible to that quantum.”
“Art. 1504. On the death of the donor or testator, the reduction of the donation, whether inter vivos or mortis causa, can be sued for only by forced heirs or by their heirs or assigns,” etc.
“Art. 3542. The following actions are prescribed by five years:
-x- ->:- * * * . -x- * *
“That for the reduction of excessive donations.
*579“This prescription only commences against minors after their majority.”
The rule le mori saisií le vif is thus expressed in the Oivil Code :
“Art. 940. A succession is acquired by the legal heir, who is called by law to the inheritance immediately after the death of the deceased person whom he succeeds. This rule applies also to testamentary heirs, to instituted heirs, and universal legatees, but not to particular legatees.”
It will be observed that the application of this article is -not confined to legal heirs, and still less to forced heirs, but that it applies, as well, to testamentary heirs, other than particular legatees; from which it follows, construing its provisions with those of Articles 1502, 1504 and 3542, that the testamentary donation of an entire éstate, including the legitime of the forced heir, confers a title upon the donee, which may be reduced, pro tanto, at the suit of the forced heir, or of his heirs or assigns, provided such suit is brought within five years.
Ilpon the other hand, counsel for plaintiffs invoke Articles 1607 ei seg. and insist that, under their provisions, as construed with those of Articles 940 et seg., there is, and can be, no necessity for a suit by the forced heir to establish title to his legitime, and, hence, that there can be no such thing as prescription against such title. The article -particularly mentioned reads: “Art. 1607. When, at the decease of the testator, there are heirs to whom a certain portion of the property is reserved by law, these heirs are seized qf right, by his death, of all the effects of the succession, and the universal legatee is bound to demand of them the delivery of the effects included in the testament.”
The learned counsel refer us to the commentators on the Code Napoleon, as sustaining the view advanced by them; and, proceeding upon the theory of the identity of the text commented on with that of the Louisiana Code, insist that the view so advanced should be adopted, notwithstanding the fact that, by its adoption, we should be compelled, practically, to eliminate from our law the other provisions which have been quoted.
The text of the two Codes, however, discloses differences of sufficient significance to account for the comments of the authors to whom we are referred and to justify the adoption of a different view by this court. Thus; Article 920 of the Code Napoleon, corresponding to Article 1502 of our Code, contains no equivalents for the words, "is not null.” It reads: “ 920. Les dispositions, soit entre-vifs, soit a cause de *580mort, qui excéderent la quotite disponible, seront reductible a cette quotite lors de l’ouverture de la succession.” And Article 921 of the Code Napoleon, corresponding to Article 1504 of our Code, reads:
“921. La reduction des dispositions entre-vifs ne pourra etre demandee que par ceux au profit desquels la loi fait la reserve, par leurs heritiers ou ayants cause; les donataires les legataires, ni les creanciers du defunt, ne pourrant demander cette reduction, ni eu profiter.”
It will be seen, therefore, that the French law makers abstain from providing that the “dispositions” referred to in Article 920 shall not be null; that they abstain from the use of the word “donation” and that Article 921 provides only for an action for the reduction of “dispositions” inter vivos, and makes no provision for such an action in cases of donations mortis causa. And this distinction is necessarily accorded the respect to which it is entitled, as may be seen from the following excerpt, which we give, as we find it, in the brief of the plaintiff’s counsel: “In donations inter vivos, the donee is proprietor of the things given, up to the death of the donor and from the moment of the contract, under the condition only of the reductions or revocations ordered by law; and so the forced heir is bound to proceed by way of action, and the donor (donee) preserves his possession during the pendency of the suit. It is otherwise with testamentary donations, even universal. The forced heirs being alone seized by law, the universal legatee is, like the particular legatee, obliged to demand of them the delivery of the thing conferred in the legacy; and when he raises such contestation against them, the forced heirs continue to retain their seizin during the contestation. Toullier, Yol. 5, p. 145.”
This commentary is entirely intelligible when we consider that there is no provision in the French law to the effect that a donation mortis causa, in excess of the disposable portion, “is not null, but only reducible;” and that there is no provision authorizing, or contemplating, an action in reduction of such donation, the theory of the law itself being that, for the reasons which the learned counsel have presented, the necessity for such an action could never arise. But, as applied to the law of Louisiana, such a commentary would be entirely unintelligible, since it would fail to take into account the fact that the framers of the law, with the French Code before them, have, ex industria, used language whereby donations mortis causa, as well as inter vivos, are recognized as effective until attacked, and whereby specific provision is *581made for actions to reduce such, donations. It must be presumed that this language was used intelligently and for a purpose. And this court has heretofore acted upon that presumption.
In Austin et als. vs. Palmer, 1 N. S. 20, and Totin vs. Case, Ib. 261, it was held that donations inter vivos and mortis causa, respectively, exceeding the disposable portion, were not void, that they were good, but reducible; and that, in the latter case, the possession of the legatee was that of an owner, and the claim of the forced heir was barred by prescription. It is said that these decisions were rendered before the rule, le mort saisii le vif, was introduced into our law, and are, therefore, entitled to no weight. But as the rule referred to applies as well to the defendants as to the plaintiffs, the inapplicability of the decisions is not so apparent. There are, however, other decisions, of later date. In Young vs. Carl, 6th Ann. 412, decided many years after the introduction of the rule mentioned, it appeared that the defendant’s husband left her an interest in his estate ^exceeding the disposable portion; that the forced 'heir, a posthumous daughter, died without complaining, and that, subsequently, her brothers and sisters, by her mother’s second marriage, sued to reduce the donation. The court said that there was some doubt whether such an action could be cumulated with another demand which was made, and then proceeded as follows: “But, conceding it may, there can be no doubt that, until that action was commenced, she possessed in good faith, under the will, one-half of the property left by her husband at his demise. The disposition in her favor was not null, but only reducible to the disposable portion; and whether it was reduced or not depended upon the future action of her children. Being in possession, under a just title and in good faith, the fruits of the property during that possession can not be recovered from her.”
In Tomkins vs. Prentice, 12 Ann. 465, it appeared that Joseph Prentice died without deseendents, leaving his estate to his mother, brother and sister, to the exclusion of his father, and that the creditors of the latter sued to reduce the donation. It was held that the creditor being neither heir nor assign, had no right of action. And Mr. Justice Buchanan, in concurring opinion, said, inter alia: “Joseph Prentice’s father has, therefore, no interest, whatever, in the succession of the son, unless the will is set aside, partially, by reducing the legacies to the testator’s mother, brother and sister, to the disposable portion, for, note, that, by Article 1489 of the Code, a disposition mortis causa *582exceeding +lie disposable portion is not null, but only-reducible to the disposable portion.”
See also Gardner et als. vs. Harbour et als., 5 M. 408; Carroll’s Heirs vs. Cabaret, 7 M. 408; Criswell vs. Seay et als., 19 La. 531; Nolan vs. Succession of New, 31 Ann. 553. Whatever, therefore, may be the views of the French writers, as to the proper interpretation of the French Code, and however well founded, there can be no doubt that the Civil Code of this State has been interpreted to mean that the ownership and seizin of the forced heir is so far qualified that the testamentary donee of an interest, including, or impinging upon, his legitime, may lawfully hold possession, as owner, until such forced heir demands the reduction of the donation. And we are not prepared to reverse the jurisprudence to that effect.
Arguing, then, upon the assumption that, if an action for reduction be necessary, it is to be found embodied in the proceeding before the court, the counsel contend that no prescription ran against Susan Beirne Robinson after she attained majority, because she was an imbecile, whose incapacity had been recognized by the court having jurisdiction of her person. The law upon this subject, as contained in the Civil Code, reads as follows, to-wit:
“Art. 3521. Prescription runs against all'persons unless they are included in same exception established by law.”
There is an exception established by law in favor of minors and persons under interdiction with respect to prescription generally, and minors are especially excepted from the prescription provided by Article 3542, against actions for the reduction of excessive donations. But there is no exception, general or special, established by law, in favor of imbeciles or insane persons, not under interdiction. It follows, therefore, that the prescription here pleaded did not run against Susan Beirne Robinson during her minority, but that it began to run from the moment that she attained her majority. The fact that Mrs. Von Ahlefeldt, her guardian during her minority, continued to act in that capacity after she attained majority does not affect the question, as, in order to deny to her the status of a person sui juris, the law of West Virginia, like the law of Louisiana, and of other civilized communities, requires formal proceedings, based upon notice, to the person whose 'rights are to be affected. Evans vs. Johnson et al., 19 S. E. Reporter, 623 (West Virginia); Hansell vs. Hansell, 44 Ann. 546; Blanc vs. Blanc, Journal de Palais, 1867, p. 366; Fuzier-Hermann, Art. 2251.
*583If it could be shown that she sustained any injury by reason of the failure of those whose duty it was to take the proceedings necessary to bring her within the exception established in favor of persons under interdiction, it is possible that she might have found a remedy in an action in damages, but as the plaintiffs herein are among her nearest relatives, it would seem that they are as much to blame as any one else and might, reasonably, have been made defendants, in such an action.
It is said that the maxim, contra non valentum agere non currit prescripts, supplies an exception in favor of imbeciles. But as that maxim is not incorporated in the law of this State it is impossible to reconcile the suggestion with the plain language of the Code, already quoted, to the effect, that prescription runs against all persons, unless they are included in the exceptions established by law; and it was no doubt this impossibility which led this court to hold that the maxim invoked “has no application in our system of jurisprudence.” Smith vs. Stewart, 21 Ann. 75; Soulie vs. Ransom, 29 Ann. 170; Succession of Winn, 33 Ann. 1397. The ruling in Succession of Ball, 43 Ann. 342, does not seem to us to touch the question at issue here. In that case, the applicability of the prescription to the persons against whom it was invoked was not disputed. The question was, when did the prescription begin to run ? In Succession of Farmer, 32 Ann. 1037; McKnight vs. Calhoun & Lane, 36 Ann. 408, and Norres vs. Hayes, 44 Ann. 907, it was held that prescription does not run in favor- of an individual and against a succession of which he is the administrator, pending his administration. It can readily be seen, however, that there were legal principles entering into the consideration of these eases which have no bearing here. But, even if the ruling thus made be. regarded as a departure from the doctrine recognized in the eases before cited, we do not feel called upon to widen the breach, for the purposes of the ease now before the court. Whether prescription shall run or shall be suspended with respect to a particular person, or a particular claim, is a matter for legislative action. And, in the language of Chief Justice Marshall, in a ease which was not within the letter of the prescription pleaded: “Wherever the situation of a party was such as to furnish a motive for excepting him from the operation of the law, the legislature made the exception. It would be going far for this court to add to those exceptions.” McIver vs. Ragan, 2 Wheaton, 28.
There is no more reason for excepting an adult, imbecile than a *584suckling infant or an interdicted maniac, and yet, whilst the General Assembly has seen fit to establish exceptions' in favor of the infant and the maniac, it has, by other express legislation, declared that, quoad certain enumerated causes of action, the exceptions so established shall not apply, so that prescription runs against them, reserving their recourse against their tutors or curators, with respect to actions on notes and bills, suits for possession, and quite a number of other matters. O. C. 3541. We have, therefore, what amounts to a specific declaration by the law, itself, that mere inability to sue shall not suspend prescription, but that persons incapable of acting for themselves shall be within, or without, the rule, as the law shall provide, and not otherwise.
It is further' contended that there was fraud in this case, and that prescription runs against those affected by it only from the date of its discovery. In this connection, it is just to the memory of Mr. Beirne, and necessary to a proper understanding of this opinion, that we should say that, whilst we are convinced, for reasons which speak from the face of the record, that it was the purpose of Mr. Beirne to secure the reversion of the bulk of his estate to his Miles grandchildren, and whilst the facts which have been established are inconsistent with the possibility of a real sale by him of his Louisiana property to Mrs. Yon Ahlefeldt, we have, upon the whole, found no reason for indulging in harsh criticism of either his purpose or his methods. He had made a contract whereby he was bound to provide his imbecile grand-daughter with everything which she could need, use, or enjoy, during her life, and no moral law required that he should make her the nominal owner of wealth, of the possession of which she eoul'd never even be conscious, merely that, when the flickering spark which animated her frail body should die out, such wealth should fall to strangers, to the deprivation of those of his own blood. The statute law of his domicile imposed no such obligation, nor did the statute law of Louisiana in so far as concerned any movable property which he might have owned in this State. In other words, if his entire estate in Louisiana had consisted of movable property, he could, under the law of Louisiana, 'have excluded Susan Beirne Robinson from participation therein. Atkinson vs. Rogers, 14 Ann. 633; In the matter of the estate of Lewis, 32 Ann. 385. With respect to immovables, the case was different, and he knew it, and acted with reference to that knowledge. But there was no attempt at either fraud or concealment. It seemed reasonably certain that the child, imbecile of body as well as of mind, would die before h'er father, *585and as she, herself, had no capacity either to use or to dispose of more than she was already provided with, and as her father was to succeed to whatever rights and property she possessed, or might inherit, he was, apparently, the only person really interested in such rights and property. Mr. Beirne, therefore, went to him, or, perhaps, he went to Mr. Beirne, aiid they entered into the contract referred to in the statement of facts. Mr. Robinson was at that time without other income than such as he could earn by the management of a farm, the net rental value of which is shown to have been about $500 per annum; and, for his interest in said farm, together with the relinquishment of his rights as the presumptive heir of his daughter, he received $100,000.00 in cash, and was relieved of the burden of maintaining his daughter, which involved an expense of about $600 per annum. It is true that, in so far as he sold and relinquished his rights as the presumptive heir of his living daughter the contract was not susceptible of enforcement in this State, but it would have become effective by his failure, in the event of the death of Oliver Beirne and of Susan Beirne Robinson, to claim the legitime of the latter; and there is no reason to suppose, in view of the contract which he had made, and the consideration which he had received, that-any such claim would have been set up by him. With respect to that, however, Beirne assumed the risk, with the knowledge that Robinson would not be permitted to retain the consideration whilst repudiating the contract. The contingency which has actually arisen, i. e., that the imbecile child would outlive her father, and that other persons than he would, therefore, succeed to her rights, as the forced heir of her grandfather, was, apparently, not contemplated, and no provision was made concerning it, — the putting of the property in the name of Mrs. Von Ahlefeldt having been, as we think, merely incidental to the plan to which Henry Robinson was a party, and which assumed that' he would succeed to his daughter’s rights. If it had been otherwise, and if. Oliver Beirne had foreseen that the present plaintiffs would be the heirs of Susan Beime Robinson, he could, and perhaps would, have provided against their inheriting, through her, any of his property, by making a real, instead of a simulated, sale of his plantations and other immovables in Louisiana, which would have left him free to dispose of the proceeds agreeably to the law of his domicile. Upon the other hand, whatever obligation Henry Robinson may have imposed upon himself, as the presumptive heir of his daughter, his contract with Oliver Beirne imposed no such obligation upon any other person who was in a posi*586tion, in the event of his death, to become such presumptive heir. The plaintiffs do not inherit from Susan Beirne Robinson by representation of Henry Robinson, but directly, and their rights, as her heirs, were not involved in the contract between Henry Robinson and Oliver Beirne. Hence there is no estoppel arising therefrom with respect to the assertion of those rights at this time, nor does it affect the question that the plaintiffs are the testamentary heirs of Henry Robinson, since he might have bequeathed the money received by him from Oliver Beirne to whom he pleased.
As matters turned out, however, the arrangements made by Mr, Beirne operate against the plaintiffs as though they had been so designed, and the plaintiffs are entitled to the benefit of the rule which they invoke. But we have found no reason to change our views, as heretofore expressed, upon the subject of the applicability of that rule in other respects. Those who claim exemption from prescription by reason of ignorance resulting from fraud must allege and show that such ignorance was neither wilful nor negligent. “It must appear from the allegations in the petition that the plaintiff had used due diligence to detect the fraud and that he could not by the use of reasonable diligence have made the discovery sooner.” Enc. Pl. & Pr., Vol. 13, p. 245. “The mere statement in the petition that the plaintiff could not have discovered the fraud by the use of reasonable diligence will not relieve him from the bar of the statute. He must state the facts upon which he relies that the court may see whether they justify and support such a conclusion.” Bremond vs. McLean, 45 Texas, 10.
.It is true that the plaintiffs allege in their petition that “they have only recently discovered the facts establishing” the simulation of the sale to Mrs. Yon Ahlefeldt, and this allegation is supported also by their testimony, in general terms. Upon the other hand, there are certain facts of which they do not plead ignorance, and of which they could not be ignorant without superhuman indifference to matters of great concern to themselves, and yet, the knowledge of which would have informed them, or should, at least, have put them upon inquiry, os to all that they needed to know for the protection of their rights, save, perhaps, the law of Louisiana. Thus, they can hardly plead ignorance of the source from which Henry Robinson, their brother, derived Jphe money which they inherited from him at his death, in October, 1888. He had lived, prior to 1885, upon his farm in West Virginia. But, during that year, he moved to Baltimore, where he established hi3 *587residence; and, three years later, he died in Washington City. If he had never informed them of the arrangement which enabled him to make this change, they certainly became informed of it at his death, since the instrument by which it was witnessed was recorded for public inspection, and they were interested in knowing that all of his estate was accounted for. And-that instrument disclosed the fact that Mr. Beirne had paid Mr. Robinson $100,000 for the farm and for the relinquishment of his rights, as the presumptive heir of his daughter. But there was no reason for paying for such relinquishment so far as Beirne’s West Virginia estate was concerned, so that there was, at once, a suggestion as to an estate elsewhere. Beyond this, Oliver Beirne had died in April, 1888, so that upon the death of Henry Robinson, in October of that year, thp plaintiff’s became practically his heirs to the extent of the interest of Susan Beirne Robinson, who was incapable of using, or disposing of, any inheritance that might have fallen to her. We think it reasonable, under the circumstances, to assume that the plaintiffs were informed of the contents of Mr. Beirne’s will and codicil and the testamentary letter, all of which were placed of record and admitted to probate in the county court of Monroé County, West Virginia, not only because they were thus placed of record, and open to public inspection, but because the plaintiffs were nearest of kin and heirs-at-law of a frail imbecile, who, in turn, was one of the heirs-at-law of the testator, and the testator was a man of large means, so that both interest and duty required that they should he, and, all human probability justifies the belief that they were, so informed. And, if they were, then here is what they say, in.their petition in this ease, as to the light which such information was calculated to throw upon the situation, to-wit: “Now your petitioners aver that said testamentary letter clearly shows that said notes were never intended to he collected by Oliver Beirne, but were to be held by him until his death, and were then 'to be returned to Mrs. Von Ahlefeldt on her reconveying the property to his executors, which confirms the simulation of said pretended sale.”
We conclude that the ignorance which prevented the plaintiffs from bringing suit upon their claim was not ignorance of facts, though there were no doubt many material facts of which they were not informed, but ignorance of the law of Louisiana, for which neither Oliver Beirne nor these defendants are to he held responsible.
On behalf of the minors Eppes, and Gwynn Robinson, as to whom *588the prescription was suspended, there is a claim for rents and revenues from the date of the death of Oliver Beirne. But, inasmuch as the-defendants, in their capacity of universal legatees, were owners, entitled to possession, of the property until demand was made upon them by the plaintiffs, claiming in the right of the forced heir, they are liable for rents only from the date of such demand. It does not, in our opinion, affect the question, that the defendants, for the purposes of this suit, have claimed title by virtue of the deed from Mrs. Von Ahlefeldt. We hold that deed to have been a simulation from which they derived no title; that the property in question belonged to Oliver Beirne at the moment of his death, and was subject to, and was affected by, the provisions of his will; and that the defendants are entitled to the benefit of the position into which they are^forced by the judgment which thus ousts them from the position which they had assumed.
Upon the question of the plaintiffs’ right of action against the Miles Planting Company, whilst we are not disposed to ignore the important difference which exists between the artificiál entity known as a corporation and the individuals of which it is composed and would be prepared to recognize such difference in the instant ease, upon the demand of a third person asserting a substantial right; nevertheless, upon the case as presented, the identity of the interest of the Miles heirs with that of the Miles Planting Company appears to its to be such as to withdraw the latter from the category of third persons who, for the purposes of the judgment to be rendered in this case, might be held to be entitled to have the property 'of the former discussed.
In the decree heretofore handed down, the claim of the minor plaintiffs for their proportion of the $45,000 received as the proceeds of the sale to the Board of Administrators of the Tulane University of Louisiana was overlooked, by reason of the fact that the attention of the court, and of the counsel, was concentrated upon the questions in dispute as bearing upon the larger interest, represented by the plantation ju’operty, and the omission with respect to the claim to said proceeds will now be rectified.
It is, therefore, ordered, adjudged, and decreed that the judgment heretofore rendered in this case be now amended, in so far as to condemn the defendants, Wm. Porcher Miles, Jr., Sally Beirne Miles, Betty Beirne Miles, Nanny Miles, Susan Warley Miles and MargareMelinda Miles, jointly, to pay to the plaintiffs, the minors Eppes and Gwynn Robinson, herein represented by Lizzie Peyton Robinson, the *589sum of $1666.66 with interest thereon at the rate of five per cent, perannum from the date of the filing of this suit; and that, as thus amended, said judgment he now reinstated, and made the judgment of this court.