On Apxilication for Rehearing.
March 14, 1904.
LAND, J.The gravamen of plaintiff’s complaint is that the court erred in holding that the testament set forth a just or good cause for her disinherison.
The testament states that the adopted daughter of the testatrix eloped and married against her consent. This was just cause for disinherison if the daughter was a minor at the time.
Plaintiff’s contention, however, is that the will expresses no just cause of disinherison, because it does not state that the daughter was a minor when she married.
We held that this was not sacramental, as the misconduct was not the minority, hut the marriage against the consent of the mother.
It is argued that the testament sets forth no misconduct at all, because it contains no *981statement that the daughter was a minor. There is, in the testament, no express statement as to age, but the necessary implication from the terms used by the testatrix and the disinherison itself is that the adopted daughter violated a duty which she owed to the adopted mother by eloping and marrying against her consent. This duty is imposed only on minors. Civ. Code, art. 97.
It is true that the law requires the testator to express in the will the reasons for disinherison, but a testament is not an indictment, in which every essential element of the charge must be alleged with legal certainty. The Code provides that the testator shall state the “reasons,” and the other heirs must prove “the facts on which the disinherison is founded.” Civ. Code, art. 1624. It appears on the face of the will that the testatrix intended to partially disinherit her adopted daughter for the cause set forth in paragraph 10 of article 1621 of the Civil Code, which applies only to minors. The testament expresses just cause of disinherison if the adopted daughter was a minor at the time of her marriage. This was a question of fact to be proved by the other heirs, and the omission of the testatrix to expressly mention this fact was not a fatal defect. We cannot presume that she was a major.
We note the contention that the prayer of the appellees in their answer to the appeal is not specific enough to authorize the amendment or reversal of the judgment in so far as it decreed that plaintiff was not disinherited by the testament.
This objection was not discussed in plaintiff’s original brief, in which the question of disinherison was fully and ably argued and submitted to the court for its decision. This court has uniformly refused to consider on rehearing points not made on the original hearing. 1 Hennen’s Digest, pp. 107, 108.
The point made in the instant case was not urged, and the objection now made is inconsistent with the action of plaintiff in arguing and submitting the question of disinherison as the vital issue before the court.
It is also urged by the curator ad hoc for the minor daughter of plaintiff, one of the defendants, that the court did not pass on his prayer for the amendment of the judgment. It is true that this matter was not mentioned in our opinion, but it is equally true that the demand contained in the prayer for amendment was not "embraced in the pleadings filed in the court below, and therefore cannot be urged on appeal. Airey v. Okolona Sav. Inst., 33 La. Ann. 1346. We may add that the demand of said minor to be recognized as forced heir can be properly considered only in a direct action against the representatives of the succession, who in this case are the codefendants of the minor.
It is therefore ordered, adjudged, and decreed that the applications for rehearing filed in this cause be, and the same are hereby, overruled.