The judgment of the court was pronounced by
King, J.*The plaintiff claims her liberty in virtue of a nuncupative testament under private signature, made by her former owner, Martin JDuplessis, a free person of color. The defendants contend that the will is null: 1st. Because it is without date. 2dly. Because it makes no mention of the place where it was received. 3dly. Because the place of residence of the witnesses is not stated in the instrument. There was a judgment for the plaintiff in the court below, and the defendants have appealed.
The will was admitted to probate in the parish of Plaquemines, where the testator died, and upon proof being made, which was satisfactory to the judge, its execution was ordered. The plaintiff contends that this judgment, standing as it does unreversed, cannot be attached collaterally, and that the testament can only be declared null ina direct action. It has been repeatedly held by the late Supreme Court, and maybe considered a well settled point, that the decree of the Probate Court ordering a will to be executed, does not amount to a judgment binding upon those who are not parties to it; and that, notwithstanding *726sudh order, when the will is offered as the title in virtue pf which property is claimed or withheld, its validity may be enquired into. In the case of O’Donegan v. Knox, 11 La. 388, it was held that admitting the will to probate and granting an order for its execution, were only preliminary proceedings, necessary for the administration of the estate, and not,a judgment binding on those who were not partiest to .them. The principle was subsequently reiterated in the cases of Robert v. Allier’s agent, 17 La. p. 14; Rachal v. Rachal, 1 Rob. 116; and Succession of Duplessis, 10 Rob. 196.
We are not prepared to say that the mere order of the judge.for the execution of a will has the affect of .a judgment, binding-even upon those at whose instance it was made, so far as to conclude -them 'from subsequently contesting the validity of the will, unless upon the' probate the question of its .validity was expressly put at issue. It consequently becomes necessary to-enquire into the alleged nullities.
The will .commences.: “Aujourd’hui le vingt-trois de í’année mille huit cent trente trais, sur son habitation, Martin Duplessis desirant,” &c. No other date or place of making the will is mentioned in the instrument, than those .stated in this clause. Jt'is contended that the omissions constitute fatal defects. The only requisites for the validity of a nuncupative testament under private signature, are prescribed in .articles 1574 and 1575 of the Code, and among these the date and place where it is passed are not enumerated. It is expressly declared that such testaments are subject to .no other formality than those declared in those articles ; and courts can require .the observance of no others. Reasons have been suggested why .it -is important to fix the date of the testament, and place where it was received. The facts may be shown by evidence ¡on the probate of the will. The principle invoked by the defendants, that a will must exhibit, upon its .face, the evidence that all the formalities required for its validity have been fulfilled, has no application to nuncupative testaments under private signature. Such testaments are not required to make full proof of themselves, and the observance of formalities which do not appear upon the face of the will, may.be shown by testimony dehors the instrument. In the ¡case of Falkner v. Friend, the late Supreme Court held that in nuncupative wills under private signature it is not necessary to mention the fulfilment of any formalities'; that it is sufficient, if, when the will is probated, they appear to have been-observed; and such, we think, is the spirit of the Code. 1 Rob. 48.
It is true that it is necessary that a will of this kind should appear to have ¡been received in the presence of five witnesses; but it is not indispensable that ifcheir names or residences should be stated in the act. In the case of Bouthemy v. Dreux, 12 Mart. 639, decided under dispositions of the old Code similar to those of the new, it was held not to be -necessary, in a will of this kind, that their names should appear in the instrument; and in the case of Falkner v. Friend, the objection was 'formally made, that the will did not appear to have been executed in the presence of five witnesses residing in the place, and the omission was held to be immaterial. Proof of the place of residence on the probate of the will, was deemed sufficient.
Although the evidence before us is not such as to show that the will is defective, the plaintiff can only avail herself of it as the foundation of her claim to her liberty, upon adducing proof that it has been admitted to probate, and that its execution hasbeenlegally ordered. This, in our opinion, she has failed to do. The five witnesses who attested the will, appeared before the probate *727judge. Four of them are stated in they)roces-verbal and decree'to be of tbs’ parish of Plaquemines, and the fifth of the city of- New Orleans. It is essential to the validity of the nuncupative will, under private signature, that it be-executed in presence of five witnesses residing in- the place where the will-is' received-, or of seven residing.out of the place.- C. C. 1574. An exception-) reestablished in regard to wills executed in the country, for whoso validity it is-sufficient if they be received in-the presence of three witnesses residing out of the place, provided a greater number cannot be had. C. C. art. 1576.
The residences of none of the witnesses at the time when they attested the will in question, has been shown. It was indispensable that this fact should have appeared, either upon the face of the instrument or by the testimony at the probate, that the judge might determine whether the will-was properly attested. The evidence adduced before the judge has not established the execution of the testament with the forms required for the validity of a will of this kind, passed either in- a town or in the- country, and was clearly insufficient toauthorise the order for its execution.
The plaintiff’s rights,, however,, have not been- concluded by this failure to administer the necessary proofs,, particularly in a proceeding to' which- she was no party. It has not been shown that any formality has been omitted, essential to the validity of the will; and, in the absence of such proof, we aro not authorisedto-pronounce its nullity. The plaintiff may still- be able to- supply the present defects of proof,-by showing that the witnesses all-resided-inthe parish in which-the will was- made; or, if they did not, that a greater number could not be procured by the exercise of reasonable diligence. Until proof is administered of every fact necessary to establish the validity of the will, its execution can not legally be ordered-; and-until sueh order, the plaintiff can-not avail herself of the-will as a title to her freedom.
The plaintiff further contends that, the defendants have acknowledged-lies' right to her freedom, in an act of partition attempted to be made by the defendants.- That act was never perfected. It was signed by several of the defendants, but not by the others. I-t was never signed by the parish judge, and wants the authenticity of a public act. The only clauses in that instrument, intended-for the benefit of the plaintiff, purport to be donations made to her and several of her children, of certain undivided interests in the succession of Martin Duplessis, ior the purpose of enabling, them to acquire their freedom. As a donation, the act is clearly invalid, even if it have any binding force whatever, in other respects, between such of the parties as have signed it. C. C. art. 1523.
The only judgment that can-be rendered in the present state-of the evidence, is one of non-suit. It is therefore ordered that the judgment of the District Court be reversed. It is further ordered that there be- judgment against tho plaintiff- as in- case of non-suit, she paying the costs- of both courts.
Eustis, C. J., absent.