On Application for a Rehearing.
Bermudez, C, J.Our decision dismissing the appeal is assailed on six specified grounds:
1. That we erred when we said that the claim of appellant is not such a matter in dispute as gives this Court jurisdiction.
2. That on the motion we passed on a question of domieü, at issue on the merits and which could be determined only when passing on the same 5 that this decision takes the appellant by surprise and that lie should liave au opportunity to be heard on it.
3. That there are errors of fact in the decision, “'when this Court said that E. T. Merrick prevented the sale of the notes, and when it passed on the question of prescription.”
4. That the test of the jurisdiction of this Courtis, whether the judgment of the court below would operate res judicata; that such judgment will so operate, as appellant’s claim is over the appealable amount.
5. That the debts owing the succession here amount to $1,900.
6. That “ the decision of the Court is inimical to Article 81 of the Constitution of 1879, and cannot be reconciled with it.”
First. We have not held that the claim of the appellant was not “ a matter in dispute.” It was such, not, however, for the purpose of *22recovering a money judgment against the succession, but only for the purpose of having himself appointed to the administration of the same. Had the appellant brought a suit against the succession, .however properly represented, praying for a money judgment under the provisions of Art. 986, C. P., and had his demand been rejected, there is no doubt that, as his claim would have been for more than $1,000, he would have been entitled to an appeal to this Court and we would have had to pass upon it; but he has not followed, nor could lie pursue that course, as there is no one representing the succession in this State. This results not only from the facts of the case, but from the very petition for an administration, in which it is distinctly averred that the succession is unrepresented. If it were, how could the application for an administration stand.
We merel5v said, that from the fact that the appellant claims to be a creditor for more than $1,000, it does not at all follow that we have jurisdiction over a contest for the administration of a succession, the assets of which do not exceed $1,000. In other 'words, we hold that the amount of a claim preferred in such a contest is not the test of our jurisdiction. In such controversies that question is to be determined by the value of the matter in dispute, the possession of which is sought, which in succession cases is the value of the assets, regardless of the liabilities. Const. 1879, Art. 81; C. P. 876; 32 An. 1136, 1120, 932; 34 An. 585; 33 An. 416; 27 An. 676; 24 An. 94; 22 An. 272, 622; 30 An. 370; 21 An. 193: 25 An. 286.
Second. We did not decide that the domicil of Mrs. Thomas was in Mississippi, and not here. It was not a matter at issue on the motion to dismiss, which involved merely a question of jurisdiction. We are at a loss, however, to perceive how the appellant can insist that she was domiciled in Louisiana, when, in his petition for the administration of her estate, he states that she was a resident of New Orleans. That circumstance did not make her domicil to be in that city. The difference between a residence and a domicil is elementary. State vs. Steele, 33 An. 911. Even if she were domiciled, as stated, that fact would not vest this Court with jurisdiction. Many are those who die, domiciled in Louisiana, over whose estates this Court has no jurisdiction. If Mrs. Thomas, although domiciled in Mississippi and a mere resident of Louisiana, had died, leaving property here exceeding in value $1,000, surely this Court would have had jurisdiction over the contest for the administration of her estate; but such is not the fact, as was decided and as will, at the proper moment, be established.
Third. We do not think that we committed an error of fact when we stated that the funeral expenses and the legacies were paid by E. T. Merrick to prevent the sale of the notes, for the record bears out *23that fact. Even had we committed a mistake in this regard, we do not see how, taking the fact to he to the reverse, the circumstance that the funeral expenses and the legacies could have constituted an asset; for it is only where the assets exceed $1,000 that this Court has jurisdiction.
We did not pass on the question of prescription, for we left the claim untouched, saying so expressly. We merely stated that prescription had been pleaded.
Fourth, Whether the judgment appealed from constitutes or not res judicata, is not a question requiring examination for the determination of our jurisdiction. This Court has jurisdiction in cases where the lower court, in a claim exceeding $1,000, when judgment is asked for as much, dismisses it, as in case of non-suit; therefore, when the judgment is not susceptible of forming res judicata. It is not what an inferior court decides which determines the question of jurisdiction, which is fixed by the nature of the demand existing at the time when it is passed upon. 34 An. 864.
The judgment appealed from merely settles the question that, under the showing made, the petitioner is not entitled to be appointed administrator. It does not purport to decide that the petitioner is not a creditor, nor that the domicil of Mrs. Thomas is here, or there. It simply declares that there shall be n'o administration of the succession here. That judgment is final and not revisable by this Court, for the reason that it is not shown that Mrs. Thomas left assets in this State exceeding one thousand dollars. Whether that judgment is revisable by another court is a question on which we have no opinion to express.
Fifth. It is.not shown that the assets said to be left by the deceased in Louisiana exceed $1,000. No inventory was taken or offered to be taken. The testimony at page 410 of the record, strenuously relied upon to establish that Mrs. Thomas left $1,900, does not prove that fact. The witness says, that he supposes that, at the time of her death, there was some three or four hundred dollars, or, may be over four hundred dollars that he owed her ; that he did not consider it as a debt now, (then) more than three years having elapsed, and his having advanced “ for ” the estate fifteen hundred dollars, which could neither be considered as payment, nor compensation for this money lent.
We cannot see how that testimony can be invoked to show an indebtedness of $1,900 by the witness to the estate. It rather proves a liability of the latter, in his favor, for the amount advanced, if such advance be a fact.
The appellant has not even filed an affidavit to show the value of the succession, although he has submitted one to show that Ms interest in it exceeds the lower limit of our jurisdiction. His interest, were it of *24a million of dollars, would not; make the assets to be worth more than $1,000, if such was not tho fact.
Sixth. The decision of this Court, far from being “ inimical” to Article 81 of the Constitution, is in perfect accord with both its letter and spirit, which forbid the Supreme Court from entertaining jurisdiction in civil cases, where the matter in dispute, or the fund to be distributed does not exceed one thousand dollars. In tho present Instance, we find neither a matter in dispute, nor fund to be distributed exceeding $1,000,
The theory on which the appellant argues seems to be ¡ that the jurisdiction of this Court in succession matters is to be tested by tile amount of liabilities. We hold, and justly, that it is tobe tested by the amount of the assets. C. P. 876; 14 An. 240.
We are, therefore, strictly observing the State’s paramount law, when We soy that we have no jurisdiction to review the judgment appealed from.
Rehearing refused.