This case is on a re-hearing, which we have granted upon the exception to plaintiff’s right and interest to maintain this suit. The answer of Jean Porte, which is said to contain said exception, is as follows;
“ The'separate answer of Jean Porte, one of the defendants in the above entitled oase, to the petition of Lisida Cure, the plaintiff herein : This defendant now comes into Court by his undersigned counsel, and reserving to himself the benefit of all exceptions which he may be entitled to by law, denies the plaintiff’s right and interest to maintain the present suit, and denies all and singular the allegations in said petition contained, especially the capacity of tutrix assumed by said plaintiff, and also her capacity of creditor of the deceased or of his estate. * * *
It seems that the Court below and the counsel considered this as an answer, and nothing more; the case was fully tried and decided on the merits, without any allusion made to any such exception; but it is seriously argued in this Court, and with great talent and ingenuity, that this answer contains an exception to the plaintiff’s right and interest to maintain this action, and that it should be maintained, on the ground that there being an administrator to said estate, it is his business and duty to bring this suit, and that plaintiff has no right to do so either as creditor, or as tutrix of her minor children.
When a defendant comes into Court by way of exceptions, he takes the attitude of a plaintiff in making the necessary allegations, and assumes the onus of proving them. Here, the assertions of the defendant' are negative, and not affirmative ; he alleges nothing, denies everything, and puts the plaintiff to proof of her demand.
But, conceding that the pretended exceptions really exist in the answer, we are still of opinion that they have been waived and abandoned by the *469defendant, in going into trial without requiring a decision upon them. 14 L. 288. In 4 L. 482, exceptions were pleaded to the manner in which' the suit was commenced, and to the capacity of the plaintiffs to prosecute it. There, this Court said : “It does not appear in the record that any judgments were pronounced on these exceptions, and as the parties proceeded to trial on the merits, without requiring the exceptions to be decided on, it may properly be considered that they were waived.” See 12 R. 194, where the samé rule was recognized.
It is true that an exception that plaintiff is absolutely without right to stand in judgment, or without interest in the subject-matter of suit, may be pleaded at any stage of the proceedings ; so it has been decided in 4 N. S. 434; 17 L. 234; 5 R. 253. But the ease at bar is very different: The plaintiff sues as natural tutrix of her minor ohildren, who are also the children and heirs of the deceased, who is alleged to have made a disguised donation by a simulated sale, to his concubine, one of the defendants, and to have that sale declared null and void. These minors are the beneficiary and residuary heirs of the deceased, and they have certainly an interest in enriching the succession. Art. 15 C. P.
In Bernes v. Dupre, 6 A. 494, this Court said : “ The acts of the deceased can be attacked only by heirs, legatees or' creditors, whose debts existed at the time of her decease.
We are satisfied that we have decided correctly by our first judgment,
Our former decision remains undisturbed.