(concurring).
Heretofore, I thought the peremptory ■exception of no right of action well founded as plaintiff had not been called to the succession of Mrs. Franzheim by operation of law as provided by Article 940 of the Civil Code. The reason why the maxim, le mort saisit le vif, was inapplicable here (so I supposed) was because Mrs. Franzheim’s succession vested in lier testamentary heirs, Kenneth Franzheim II and Mrs. McCullar (as well as her executors) under Article 940 and the only right plaintiff had, at that time as a forced heir, was to sue for a reduction of the excessive donation as prescribed by Articles 1502 and 1504 of the Code. Article 1502 states that “Any disposal of property, whether inter vivos or mortis causa, exceeding the quantum of which a person may legally dispose to the prejudice of the forced heirs, is not null, but only reducible to that quantum”. Italics mine.
This Court has had to construe the effect of Codal Articles 1502, 1504 and prescriptive Article 3542 in connection with the apparent conflicts arising from a reading of Articles 940, 941 and 1607 and 1608. And, ever since the decision on rehearing in Cox v. Ahlefeldt, 105 La. 543, 30 So. 175, it has been consistently held that the forced heir, who has not been called to the succession, does not become vested by operation of law with seizin of his legitime. His only remedy is to sue for reduction of the excessive donation since the testamentary heirs are vested with the succession until such time as the forced heir is judicially recognized. See Succession of Smith, 182 La. 389, 162 So. 21, where most of the applicable cases are cited and discussed, and Draper v. Van Leer, 197 La. 259, 1 So.2d 513.
However, I now find that, while it is true that plaintiff was not vested with her mother’s succession to the extent of her legitime at the time she filed this suit, she has acquired seizin during the pendency of the litigation and prior to the time the testamentary executors of the Succession of Simms filed the peremptory exception of no right of action in this Court. According to the record, it appears that on December 23, 1964 there was a judgment of probate on a rule to show cause rendered by the Twenty-Fifth Judicial District Court in the ancillary Succession of Mrs. Franzheim. This judgment, inter alia, recognizes Mrs. Reese as a forced heir of the decedent with respect to immovable property in Louisiana and orders that the testamentary dispositions be *239reduced to the extent that it impinges on her legitime.
Under this judgment, Mrs. Reese became vested with seizin of the succession by operation of law to the extent of her legitime and the fact that the succession’s executors also had seizin is immaterial. For the maxim, le mort saisit le vif, is a rule of our jurisprudence, and the seizin of executors or administrators is a fiction of law which does not prevent that of the heir. Succession of Dupuy, 4 La.Ann. 570; State v. Brown, 32 La.Ann. 1020 and Tulane University v. Board of Assessors, 115 La. 1025, 40 So. 445.
Accordingly, plaintiff is vested with all rights of her mother. See Article 943 of the Civil Code. This, of course, includes her mother’s right to assail the dispositions of Mrs. Simms’ will which are alleged to be prohibitive substitutions as Mrs. Franzheim would not be estopped by the acceptance of her mother’s succession and the ex parte judgment of possession, from thereafter attacking those dispositions as absolute nullities.
The exception of no right of action is, therefore, properly overruled but the reasons given in the prevailing opinion for its action are not sound in my estimation. Indeed, none of the codal articles (871, 884, 886, 902, 940, 941, 944, 945 and 1607) cited in support of the conclusion “ * * * that Mrs. Reese became seized of all the rights of her mother at the moment of her mother’s death, * * * ” control the situation at bar because, as I have hereinbefore pointed out, plaintiff was not an heir called by operation of law to her mother’s succession. For her mother had in effect (although unenforceably) disinherited plaintiff by disposing of her entire estate, mortis causa, to plaintiff’s, brother and sister. As aforesaid, this disposition, according to Article 1502, is not null but only reducible by action brought within the time prescribed by law.
On the merits, I am in agreement with the majority view and, hence, concur in the decree.