On the Merits.
This is a suit by the heirs of Jacob Hoover against the defendants, as executors of his last will, to set aside the order probating the same, revoke the letters testamentary issued to them, and to annul said will. As it is important., for its bearing on our conclusions, that the exact character of this action should be known, we quote from the prayer of the petition, that “ the order or decree admitting the said will to probate be annulled, that the letters testamentary be revoked, and that the will itself be decreed to be null and void, for the reasons and on the grounds alleged by your petitioners.” The suit was instituted in 1873.
There were pleas of res adjudicata and prescription filed by the defendants, which were sustained by the Judge of the first instance and the suit dismissed, and from this judgment the appeal is taken.
*576The plea of res adjudicada is founded on the following facts and proceedings:
Jacob Hoover died in the Parish of Concordia in 1859, leaving a large estate. The same year, and a short time previous to his death, he made a last will in the nuncupative form by public act, constituting Zebulon York and Elias J. Hoover his universal legatee's, and appointing them testamentary executors. ' The will was. duly probated.
The'same" year'tlie heirs at law of" said 'decedent instituted suit against the universal legatees to annul the will and' recover the'estate.’ In the petition and amended petitions in the ease' many grounds of liullity are set up, unnecessary here'to enumerate. To show what was’ demanded in the suit and ascertain its precise' character, we quote from the prayer of the petition as follows :
“That petitioners be adjudged to be the joint heirs of said Jacob Hoover ; that the said pretended nuncupative will by public act * * be decreed tobe null and void and vesting no title whatever in said York and Hoover,”' etc.
During the pendency of this suit York and' Hoover, the universal legatees, surrendered in bankruptcy ; the plantations devised them by the will were sold' at bankrupt sale, and the assignee in bankruptcy and the purchasers, of the property at the sale, one A. Gr. Ober and* others, were made parties to the suit.
The' suit was finally determined on appeal to this' Court in 1872, being reported in 25 An. 375, wherein all the facts connected with this litigation are given in detail and at length, and to, which we refer as furnishing a fuller statement of all matters connected with this controversy than we deem it necessary now to give.
In that opinion the Court recite tbe grounds of nullity urged against the will, both as relating to the form and the extranepus causes of liullity propounded in the suit, and the Court expressly declares that all .the grcjunds of nullity urged are without force, and finally say,' quoting from the opinion, “ oar conclusion is, that York and Hoover acquired by the will of Jacob Hoover a good title.to all the property left by him,” and by the decree rendered, the title to the property was confirmed in those holding under York anfi Hoover, an.d who had been’, made parties to tbe suit as stated.
The next year after this decision was rendered the present suit was' instituted, the object and character of which we have stated above;.' We.have.gpne carefully over the pleadings iu both eases, and we find" tbé grounds of nullity against the will asserted therein to be substantially the saíne. These various grounds urged in the first "case are embodied in the original and several amended petitions, and are substantially repeated in the last—the present suit.
*577This view would seem to support at least one requisite of the plea of res adjudicata urged in bar of the instant suit—that of the same cause of action. It is, however, contended by the plaintiffs’ counsel that such is not the case; that there is not that identity in the cause of action as to make good the plea. That the former suit was a petitory action, and the nullity of the will was only an incidental or collateral issue, whilst the present one is a probate proceeding directed against the executors of the will, and instituted originally in a different court from the other suit, the present one having been brought in the Parish Court and the former in the District Court.
It is obvious that the rights of the parties, or their respective claims to be determined in both suits, were dependent solely upon the validity or invalidity of the will in question. That was the main issue in' both cases. In the first suit by the heirs for the recovery of the estate, the court was not only competent to pass on this question of the validity vel non of the will, but was compelled to do so, in order to determine whether the estate should go to those seeking to recover it or remain in the possession of those holding, possessing and claiming it under the will. This all important issue, this pivotal question, the Court of the highest resort did decide in the former suit. That judgment, whether it commends itself to our approval or not, was the judgment of a competent court having complete jurisdiction over the subject matter determined, and that judgment upon this issue was adverse to the plaintiffs in that case.
It is again urged that the parties to the two suits were not the same. That some of the heirs of Hoover were not parties to or represented in the former suit.
It appears that two of the heirs of Hoover, original parties td the first suit, one as the plaintiff and the other as intervenor, died during its pendency. The testamentary executor of one of them became a party to the proceeding and the attorney for the absent heirs of the other deceased was also joined therein.
It is contended that these original parties were not legally represented by these appearers. We do not find it necessary to determine this point, in view of the plea of prescrix>tion filed herein. If they were legally represented, then their rights were finally adjudicated upon by the judgment rendered. If they were not, then the plea of prescription must hold good as to their claims prosecuted in this suit in the names of their heirs, inasmuch as the prescription of five years, declared by Art. 3542 of the Code against actions for the nullity of testaments, was not interrupted as to them by the former suit. That suit, as stated, commenced in 1859, and the present one in 1873, *578and more than five years elapsed after the death of these original parties before the institution of the present action.
It is, however, contended that this prescription does not apply to some of the causes of nullity propounded in this suit. It is unde-' niable that it applies to nullities of every kind and description, when urged against parties claiming and holding possession under the will.
The defendants originally in the first suit were York and Hoover, sued as universal legatees. Before the termination of that suit, as will be seen from the statement of facts premising this opinion, they ceased to have an interest in the suit for the reason that they became divested of their ownership of the property in controversy through their surrender in bankruptcy and the bankrupt sale mentioned, and the purchasers at such sale were made defendants in the suit, and became the only real defendants therein, and when the judgment was rendered in the case were the only parties in interest to be affected by the judgment.
The present suit was commenced against York and Hoover, as executors of the will, but the real party in interest resisting the claims and pretensions of the plaintiffs herein is A. G. Ober, the intervenor in the ease, and one of the defendants in the former case, and representing in this all the interests of the real defendants in the former one.
This establishes the identity of the real parties in interest defending the two suits.
The final judgment in the first suit was a judgment in favor of Ober and his co-defendants, owners of the property in controversy, and the judgment of the District Court, now being reviewed on this appeal, was in favor of Ober, the sole owner of the property under transfer from the other purchasers at the bankrupt sale, and co-defendants with him in the former suit.
For these reasons the judgment appealed from is affirmed with costs.