The opinion of the court was deliver.- d by
Nicholls, C. J.Plaintiffs represent that Fred. Zengel is a notary public in and for the parish of Orleans, and was such on the 29th of December, 1888, at which time he received the last will and testament of Robert H. Short, who formerly resided in New Orleans and died on the 11th of August, 1890, in which said will the said deceased gave and bequeathed to Mrs. Virginia T. Murray, widow of Joel T. Murray, or her heirs in case he survived her, the sum of three thousand dollars.
That on the 2 2d of May, -1890, and before the death of Robert H. Short, Mrs. Virginia T. Murray died, leaving as her heirs Arthur H. Murray, Mrs. Juliette Murray Jones, and the issue of a predeceased daughter, Mrs. Mary W. Murray, to-wit: the minors Arthur Murray Dargan, Cornelia Alice Dargan and Bertie Lucy McDonald, all of whom are plaintiffs herein, and are the parties described as the heirs of Mrs. Virginia T. Murray in the said testament, and would be hence entitled to the said legacy.
That the said will was duly probated on the petition of Philip S. Sims, named as one of the testamentary executors in the will, on the 18th of August, 1890. That thereafter Mrs. Margaret Short Moran, a legatee of R. H. Short, filed a suit to annul the will, on the ground that the said notary had failed to clothe the will with the formalities required by law, and especially because after a greater portion of the said will had been dictated by the testator to *460the notary, and having been read over to the testator and the testator having changed certain dispositions and added a modification or an amendment to the will, bequeathing the residue of his estate after discharging the legacies therein named to all the legatees named therein, share and share alike, the notary failed to clothe said amendment or modification with any of the requirements of law, and by reason of the said fatal defects the said will was a nullity. That plaintiffs were cited, among others, as defendants in said suit, and after due proceedings said will was annulled and avoided solely by reason of the fatal defects of form appearing on the face thereof, due wholly to the fault and want of care on the part of the notary, which judgment is now final. That when the notary executed the said will, William R. Richardson and John Spencer, now deceased, were the sureties of the said notary on his notarial bond, on which bond the t aid Fred. Zengel, notary, bound himself as principal in the sum of five thousand dollars, and each of the' sureties in the sum of twenty-five hundred dollars.
That by reason of the fault, negligence, imprudence, want of skill and inattention to his business, and the deplorable omissions in failing to clothe the will with the requirements of law, which the said Robert H. Short had a right to expect by reason of the said Zengel’s reputation as a competent notary, the will was a nullity, and was so declared by judgment of court, and petitioners were damaged in the full sum of their so lost legacy.
That John Spencer, one of the sureties, has died, ánd his succession is represented by the said Fred. Zengel and John Lynch as executors. .
That under the law the said notary is liable for said damage and injury; that the surviving surety, Richardson, is liable in solido with him up to the sum of twenty-five hundred do lars, and that the succession of Spencer is liable in solido up to the sum of twenty-five hundred dollars.
They pray for judgment against Zengel for three thousand dollars and for judgment for the sum of twenty-five hundred dollars against Richardson, and for a like amount against the succession of Spencer, with legal interest from date of judgment.
' Defendan s excepted — first, that the demand was premature, and, second, that the same sets forth no cause of action.
Plaintiffs then filed a supplemental petition, in which, reitera* ing *461their averments as first made, they further alleged that the succession of Short is perfectly solvent, and had the -will of the deceased executed before the said notary not been annulled by decree of court, they would have received the full amount as stipulated in the said will th -t they should be entitled to — that even had the court failed to annul the will for the reason more particularly set forth in the petition, still the said will was an absolute nullity because the notary had failed to clothe io with the formalities required by law, in that it was not written by the notary as dictated by the testator, which said fact the notary has himself testified to in the contest of said wills of the deceased, in which he was examined as a witness, all of which was due wholly to the fact of the negligence and want of skill of the said notary, as was more fully set forth in the or ginal petition.
By consent, of counsel the exceptions were referred to be tried with the merits.
Defendants, under reservation of their exceptions, answered, pleading first the general issue; further answering the defendant, Eengel, said that it is true he made the will complained of, but that he took down and wrote the will exactly as it was dictated by the testator, and that he did not fail or omit to comply with all the formalities of law, and he specially denied that the will in question was invalid, or that the same has ever been held to be invalid by any court or in any case, except in a consent proceeding, and he specially denied that the plaintiffs have suffered any loss whatever as the result of the making of the will, and that in the event that the e should be an error in the confection of said will, then he pleaded the same was an error of judgment, and not want of skill, or negligence in the confection of the will.
Judgment was rendered in the District Cour., in favor of the defendants, and plaintiffs have appealed.
Robert H. Short died in the city of New Orleans on the 11th August, leaving no ascendants or descendants, but certain collateral relations who, in the absence of the testamentary dispositions by him, would have been his legal heirs.
These parties were (1) the plaintiffs, who are the children of Virginia Thomas Short, a predeceased sister, who was the widow of Joel Murray; (2) a half sister, Juliette Brown, widow of R. S. Simms; (8) the descendants of William H. Brown, a predeceased half-brother; (4) the representatives of Richard Brown, a predeceased *462half-brother; (5) the representatives of John Short, a predeceased half -brother.
Robert H. Short had, however, executed two wills by notarial acts — one before Geo. W. Christy, notary, on the 19th day of April, 1888; the other on the 29th December, 1888, before Frederick Zengel, notary.
In each will his entire estate was disposed of. In that of 19th April, 1888, known as the “ Christy ” will, he bequeathed, after payment of the special legacies therein made, “ the residue of his property ” to the Christian or Campbellite church, at Hopkinsville, Ky., and to the Baptist church at the same place.
In the second will, known as the Zengel will, he at first bequeathed, after the special legacies therein made, “the remainder of his estate” to his nephew, Philip Short Sims, but before signing his name “ declared to the notary, in presence of the witnesses, that he amended and modified his will as before written, by bequeathing the remainder and residue of his estate, after the discharge of the legacies therein made, in equal shares and interests to all of the therein-before named legatees, to be possessed by them share and share alike.”
Both of those wills were probated by the Civil District Court.
The deceased left considerable property, real and personal, in Louisiana, and real estate in Tennessee, Alabama and Kentucky.
Mrs. Margaret Short Moran, wife of. William J. Moran, who was a legatee in the Christy will for four thousand dollars, and in the Zen-gel will for two thousand dollars, instituted an action to which all parties holding adverse interests were made defendants, asking the annulment of the Zengel will and the recognition and enforcement of that executed before Christy.
The plaintiffs and appellants herein filed an answer in that case, in which they say “ for answer to the petition of Mrs. Margaret Short Moran to annul the writing purporting to be the will of Robert Short, dated December, 1888, they admit that said public act passed before Fred. Zengel, notary, is null and void and of no effect, because (1) all of its dispositive provisions were not dictated by Robert Short to the notary in the presence of the witnesses, nor (2) were all of the provisions written by the notary as dictated in the presence of Robert Short and in the presence of three witnesses, nor (8) were all of its dispositive provisions read aloud to Robert Short *463by the notary in the presence of three witnesses, observing all these formalities without interruption and without turning aside' to other acts, and these respondents admit that the said act of 19th April, 1888, is null and void, and pray that it be so decreed, and they deny all the other allegations of the petition of the said Margaret Short Moran, and they aver that the said Robert Short died intestate. * * * Now these respondents show that the writing of 29th December, 1888, purporting to be the last will and testament of Robert Short, is null and void and of no effect, not only for the fatal defects of form already alleged but also because he was. not of sound and disposing mind and memory at the time of the execution of the said instrument, and was insane at that time and was under the control of the will of another. They further allege that the writing purporting to be the last will and testament of Robert Short, passed before George W. Christy, is null, void and no effect, and should be so decreed, and the demand for its execution rejected.’1'
The answer, after enumerating a number of objections in the preparation of the will, closes by alleging that at the time of the making of the same Robert Short was not of sound and disposing mind andl memory; that he was insane and incapable of making a will. Ife then proceeds as follows: “ And these appearers assuming the attitude of plaintiffs in reconvention against Mrs. Margaret Short Moraru pray that her demand for the annulment of the will of 29th December, 1888, be granted, and that her demand for the establishment of the will of 19th April, 1888, be rejected, and said act be declared null and void and of no effect, and that it be decreed that Robert Short died intestate, and that your petitioners (naming each of the present plaintiffs) be recognized as his heirs.”
They prayed for citation to the attorneys of absent heirs, the various legatees, the executor of the will of April 19, 1888, and the executor of the will of 29th December, 1888, and that petitioners have judg _ ment in conformity to their allegations, and rejecting both wills.
Some of the parties cited submitted the issues raised in the pleadings of the plaintiff, Mrs. Moran, and of the reconventional demand to the decisions of the court; others filed general or special denials, or made special admissions, as their different interests dictated.
The District Court upon these issues adjudged the Zengel will null, but upheld that executed before Christy — dismissing the reconventional demand.
*464In his reasons for judgment, the.district judge disposed summarily of the Zengel will by the statement that “the will of December 29, 1888, is conceded by all parties to be of no effect.”
The succession of Robert H. Short has not been closed; it is still under administration in the District Court. The rights of parties have not yet been definitely ascertained and fixed. In the present proceeding the District Court upheld the validity of the Zengel will, which it had before pronounced of no effect — the judg3 in his judgment stating, as he did in his testimony taken in the case, that the first judgment was substantially, in his opinion, a consent decree; that acting upon that hypothesis he had not given the will the consideration and thought which he would have done had it been contested in the first as it was in the last case; that had the matter been presented to him originally as it was afterward, he would have sustained and not rejected the will.
The first position contended for by the plaintiffs and appellants is that the exception of prematurity filed by the defendants is not before us, it having been abandoned by consent.
The second is that “prematurity vel non of the action is not dependent upon whether the succession of Short has been or ever will be administered.”
The exception was not waived. The record entry states “ that by consent of counsel the exceptions are referred to be tried with the merits,” and the answer filed was “ under benefit and reservation of the exceptions.”
A consent that they should be “tried” with the merits does not, under such circumstances, merge them into the answer.
Were appellants’ contention in their first point true, they would have still to maintain the correctness of the second, which is “that their right of action arose when Mrs. Moran brought suit to annul the Zengel will and had the probate and the will set aside; that whether or not plaintiffs had established the amount of their loss was another question. That the act which occasioned their loss and gave .them a cause of action was the fault of the notary in failing to make a valid will.”
We do not think that the act of a notary in failing to comply with the formal requirements of the law in the preparation of a will, carrying with it as a result the rejection of the will, gives rise neces*465sarily per se to an action against the notary by a party named as a legatee in the rejected will. The setting aside of the instrument would in many instances enure to the benefit instead of to the injury of the legatee. The ease at bar is itself an instance of the truth of this statement. The plaintiffs here, as heirs at Jaw of the deceased, would receive a large portion of his estate if he should be held to have died intestate, whilst the upholding of the will would take from the heirs the entire succession, leaving them special legatees for a trifling amount. But for the fact of the existence of the prior will of April 19,1888, plaintiffs’ obvious interests were that the Zengel will should be declared null, and even with the Christy will s anding between them and their position as legal heirs, they deemed the Zengel will an obstacle in the way of those interests, and sought by affirmative action to get rid of it.
Plaintiffs’ conduct indicated a rejection of the legacy made to them in the Zengel will. The attack upon that instrument was part of a general plan to get into position as legal heirs of Robert Short, through a repudiation of and setting aside of both wills.
We th nk that where a will has failed of probate by reason of the fault of a notary in the drawing of the instrument, a person who predicates an action upon that fact must also allege and prove injury. Injury must concur with error, and the extent of the injury would be the measure of the plaintiffs’ rights. It matters little practically in this case whether we deal with the question of prematurity from the standpoint of an exception taken to the action or that of a failure by the plaintiffs to allege and prove a condition of affairs giving rise to the action and entitling them to a judgment. There is no claim or pretention in plaintiffs’ petition that the succession of Robert H. Short has been settled and the rights of parties finally ascertained and fixed. It is true plaintiffs in one allegation aver as a conclusion that they have been damaged to the extent of their legacies, but there is no fact stated,' save the fact itself of the setting aside of the will and a declaration that the succession of Short is solvent, on which such a conclusion could be based. The solvency of the succession is anything but certain. We do not feel warranted in the present situation of the Short estate, and under the pleadings, in examininginto and adjudicating piecemeal upon the issues raised in this litigation. It will be time enough to do so as a whole when we will have to deal with facts and not conjectures.
*466What we say here has reference to. the claim set up on behalf of the minors. .
We. have enough before us to pass finally upon the claims of Arthur H. Murray, advanced individually by him, and those of Mrs. Juliette Murray, wife of Philip S. Jones. . ..- ,
We are of the opinion 'that those parties by seeking to avail them-: selves of. the alleged errors of the. notary against the other legatees under the Zengel will* and as part of a general plan .to get into position as heirs of Robert H. Short, should not, though their efforts proved futile by reason of the prior will, be permitted to subsequently turn back upon the notary, whose errors they had deemed beneficial and had sought to utilize in their own behalf as instruments.of attack. Plaintiffs cite us to .the principle announced in the decisions quoted in the American and English Encyclopedia of Law, Yol. 7, Note 2, Yerbo “Estoppel,” to-the effect-that parties are notbound by allegations unsuccessfully pleaded. We do not think that principle applicable to this case. It may be that--when parties attack-a will for fraud, for insanity, or on other grounds, and fail in their attack from resistance made,-they can still claim the benefit of any provision in their favor to be found in the will, as estoppel would meet estoppel, but we do not think- the doctrine goes to the extent .contended for here. We think it perfectly clear that it was the desire, the interest and the intention of the major heirs to free themselves from the effect of both wills. To that end in furtherance of that object they affirmed and adopted, and by so doing condoned, the errors (if such they were) of the notary. They can not be allowed to repudiate now as wrongful and injurious that which they had previously availed themselves of- and advanced and relied upon and sought to utilize as a basis for acquiring beneficial rights.
In examining the record we notice-that while Mrs. Juliette Murray, wife of Philip - S. Jones, was, by the Zengel will, made a legatee for five hundred dollars, she is by the '-Christy will a legatee for one thousand dollars. - .
For the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed be and the saméis hereby affirmed in so far as it -c oncerns Arthur H. Murray individually, and Mrs. Juliette Murray Jones, wife- of Philip -S. Jones. ■ .....
It is further ordered, adjudged and decreed that as concerns the minors Arthur Murray Dargan, Camelia Alice Dargan and Bertie *467Lucie McDonald, the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment against the. said minors on their demand as in case of non-suit.
Miller, J., recused.Rehearing refused.