The opinion of the court was delivered by
Breaux, J.
(Watkins, J., dissenting).
On rehearing by Monroe, J. (Breaux, J., concurring).
Breaux, J. Plaintiffs sue for judgment against the defendants, decreeing that the sale from Oliver Beirne to Mrs. Nannie Von Ahlefeldt, made on the twenty-first day of January, in the year 1886, be annulled as a fraudulent simulation, also her title to a plantation, known as the “Houmas,” and decreeing further, that it was the property of Oliver Beirne at the time of his death, and subject to all the rights of Susan Beirne Eobinson, one of the forced heirs of Oliver Beirne. Plaintiffs also ask that the sale of this property by Mrs. Von Ahlefeldt, vendee of Oliver Beirne, to the children of William Porcher Miles be decreed null in so far as it affects their rights, and that they be recognized as owners in the proportion stated by .them in their petition, and also that they are entitled to rents and revenues of the property; and, lastly, in ease the court holds that the acts assailed had any realty, as disguised donations (which they deny), then that they be decreed to be entitled to relief by reduction of the donations made.
.Plaintiffs, inter alia, set out in substance that the property in which they claim the legitime, and to recover which they ask to have decreed [546]*546the simulation charged, belonged to Oliver Beirne at the date of his death; and that Susan Beirne Robinson, from whom they inherited, became the owner of this non-disposable portion or legitime, and that they have the right to have the act of sale from Oliver Beirne to Mrs. Von Ahlefeldt, and the title to the Houmas place, in her name, decreed to be fraudulent simulations.
As relates to the status of Susan Beirne Robinson^ the one from whom they inherit, they aver that although there was no judicial appointment of a guardian after she had reached majority, yet, in certain judicial proceedings in the Circuit Court of Monroe County, West Virginia, entitled Oliver Beirne, Executor, vs. Sallie C. Beirne et al., to which Mrs. Von Ahlefeldt, as guardian of Susan Beirne Robinson, was a party defendant (as were also all the Miles children), it was judicially determined that Susan Beirne Robinson had been an imbecile since her birth, and that such imbecility is both mental and physical, and is permanent) and that the decree was affirmed by the Supreme Court of Appeals of West Virginia. Plaintiffs deny that the sales in question (which they attack as simulated) have any reality, yet, plaintiffs aver, in case it should be claimed by the defendants and should, on any ground, it be held that these acts have any reality, as disguised donations, then they are entitled to have such donations reduced .to the disposable portion. Plaintiffs charge that defendants were aware that Mrs. Von Ahlefeldt had no title to the property and .that they bought it knowing that, it was subject to the rights, of Susan Beirne Robinson. Defendants, in their answer and exceptions, set up a number of grounds controverting plaintiffs’ demands.
Susan Beirne Robinson, from whom plaintiffs claim to. have inherited, was born in West Virginia, on January 25th, 1871, and died January 4th, 1894, leaving no ascendants or descendants. At her death, the nearest surviving relations were the brothers and sisters of her late father, or their descendants, and Mrs. Nannie Von Ahlefeldt, her maternal aunt. Susan Beirne Robinson was the daughter and only child of Susan Beirne, and the only issue of her marriage with Henry A. Robinson. Susan Beirne Robinson, whose physical and mental condition was, as alleged, was never interdicted. Her father, Henry A. Robinson (her mother having died August 12th, 1885), sold a plantation, the Walnut Grove, to Oliver Beime for the sum of one hundred thousand dollars. This plantation had been deeded previously by Oliver Beirne to his daughter, Mrs. Robinson, mother of Susan Beirne Robin[547]*547son, .and was sold by Eobinson to him for the amount just stated. Tho vendor, Henry A. Eobinson, declares in the deed to Oliver Beirne that he sells all claims that he may have in the property by virtue of his being the father of Susan Beirne Eobinson. The intention was, it appears, that if Oliver Beirne died prior to his son-in-law, Henry A. Eobinson, in that event the son-in-law would relinquish to the heirs of Oliver Beirne his right as father and guardian of his minor daughter, Susan Beirne Eobinson.
In this deed, the vendor appointed Oliver Beirne the guardian of the person and the estate of his daughter, Susan Beirne Eobinson, and Oliver Beirne bound himself to provide for her (his grand-daughter) as long as she lived. The deed proceeds. “It being intended that if the said Oliver Beirne should die before the said Henry Eobinson, or the said Susan Beirne Eobinson, then and in that event, said Henry Eobinson relinquishes and releases to said Oliver Beirne and to Iris heirs, all rights, title, or claim he has or might have by virtue of his being the father and natural guardian of said Susan Beirne Eobinson.”
At the death of Henry A. Eobinson, in 1885, his estate, consisting mostly of the sum of one hundred thousand dollars, received by him from Oliver Beirne, vendee, was inherited by his brothers and sisters, the present plaintiffs. The defendants insist that under the terms and conditions of the sale made by Oliver Beirne with the view of providing for Susan Beirne Eobinson, Henry A. Eobinson was greatly benefited, and that, afterwards, plaintiffs, by the inheritance of the said amount, shared in this benefit. ,
In 1885, Oliver Beirne made his will, reciting therein that he had bought a plantation in Virginia, known as Walnut Grove, from Henry A. Eobinson, which property he directed to be managed by his executors and the revenues necessary for the support of the afflicted Susan Beirne Eobinson set aside for that purpose as long as she lived, and if Mrs. Von Ahlefeldt were to survive said Susan Beirne Eobinson, the property was to revert to her to be disposed of as she saw proper. But if Susan Beirne Eobinson survived her aunt, Mrs. Von Ahlefeldt, this property, at her death, was to be divided between the testamentary heirs. The children of William Porcher Miles, who were also the grandchildren of the testator, Beirne, were made the residuary legatees under the will. The following is a codicil to said will: “I have paid my son-in-law, William Porcher Miles, for attending to my business in Louisiana five thousand dollars per annum, and recommend my daughter to [548]*548continue the said amount to the said Miles, and I would further advise its continuance until the estate is finally wound up in accordance with this will.” The will of Oliver Beirne was admitted to probate in Monroe County, West Virginia, on April 2Yth, 1888. In December of that year, before one of the courts of West Virginia, the executors of the will brought an action to have it interpreted. It was interpreted by the courts of that State, and the provisions regarding the maintainance and care of Susan Beirne Robinson were construed, and, as construed, the court ordered them to be enforced for the protection of the child Susan.
In 1886, Oliver Beirne sold all the property he owned in Louisiana to his daughter, Mrs. Von Ahlefeldt, consisting of a number of plantations and other property, for the sum of one million dollars, represented by ten promissory notes for the sum of one hundred thousand dollars each. In 1888, Mrs. Von Ahlefeldt bought the Iloumas plantation, which was formerly the property of Duncan E. Kenner. In a letter written in 188Y, addressed to the executors or those whom he had named in his will to be his executors, Oliver Beirne enclosed these ten promissory notes and instructed them to deliver the notes to Mrs. Von Ahlefeldt whenever she deeded the property to his grandchildren, the children of William Porcher Miles. On January 25th, 1889, after the death of Oliver Beirne, Mi’s. Von Ahlefeldt sold the property conveyed to her by Oliver Beirne to the said grandchildren and received therefor all the notes executed by her as purchaser. This act recites that besides the notes returned, three hundred thousand dollars was the purchase price. In another part of the deed, the right of the vendor in the succession of Oliver Beirne is set forth as additional consideration. This transaction was preceded by an order of court of competent jurisdiction in this State, granted upon the-application of the Miles children, with the recommendations of a family meeting, authorizing those of the Miles children who were minors to buy the property. In 1892, the Miles children conveyed all this property, with the exception of that which was situated in New Orleans, to the Miles Planting and Manufacturing Company, Limited. In 1890, the Miles children had previously sold the property in New Orleans to the Tulane Educational Eund.
In the first place, defendant in this suit here filed an exception setting out that plaintiff had no cause or right of action. The judge of the District Court sustained the exception and dismissed the suit, holding that the action was not -one for the reduction of a donation inter vivos, or mortis causa, or an action to set aside the sale of real property as a [549]*549donation in disguise. The District Court decreed that the action was revocatory in character, and not en declaration de simulation and was prescribed by one year. Erom this judgment an appeal was taken, and, on appeal, this court reversed the judgment of the lower court and reinstated the case for trial on the merits, holding that.the action was entirely distinct from the revocatory action.
On the trial in the court below, after the ease had been remanded for its trial on the merits, evidence was heard and the court found that the sales were simulated as relates to the vendor, Oliver Beirne, but that they were real in so far as the vendee, Mrs. Von Ahlefeldt, was concerned, and that they were also real as relates to the Miles children. Erom this decision, the plaintiffs appeal.
The testimony in the case now before us on appeal discloses that the inventory of the succession of Oliver Beirne, made in West Virginia, embraced the ten notes executed by Mrs. Von Ahlefeldt for the sum of one hundred thousand dollars each, secured by property situated in Louisiana, that the executors of his succession instituted a suit in chancery in that State, contradictorily with the parties in interest, including Susan Beirne Robinson, and that the court of West Virginia ordered the delivery of these notes (the property of the estate of Oliver Beirne) to the children of William Poreher Miles under the terms of the will, and they were delivered in accordance therewith. The evidence further discloses that, in 1888, the executors of the estate of Oliver Beirne brought an action in one of the chancery courts of West Virginia, in order to obtain the court’s views in regard to the proper execution of the will of Oliver Beime. To that suit, Susan Beirne Robinson and Mrs. Von Ahlefeldt were made parties. The petition in this case refers to the notes, and as to them it is alleged that they were executed by Mrs. Von Ahlefeldt, and that they should be surrendered to her on her conveying to the aforesaid executors the Louisiana property named in the mortgage for the benefit of the children of William Poreher Miles, as directed by Oliver Bierne in the codicil to his will. That court also found that the property mortgaged by Mrs. Von Ahlefeldt, in favor of Oliver Beirne, vendor, was worth about six hundred thousand dollars, including the Houmas place, “which was bought and paid for by Oliver Beirne in his life time, but was deeded directly to Mrs. Von Ahlefeldt.” The notes before mentioned were handed over to Mrs. Von Ahlefeldt by the court of West Virginia, and were delivered by her to the Miles children. They are referred to in the sale of the [550]*550property by Mrs. Von Ahleieldt to the Miles children as haying been cancelled thereby. This deed, between Mrs. Von Ahlefeldt to the Miles children, was dated January 25th, 1889.
In March, 1889, as guardian of Susan Beirne Robinson, Mrs. Von Ahlefeldt, before said court in West Virginia in said case, filed an answer to the chancery proceedings before referred to, stating that the ten notes of one hundred thousand dollars each had been cancelled and surrendered to her by proper authority in accordance with the terms of the codicil to the will of Oliver Beirne; and stating further that “the mortgages to secure said notes have been discharged, and that nothing remains to be done by this honorable court in relation thereto; that the respondent does not claim any of the Louisiana property referred to in said bill, otherwise than under a mortgage recently executed by her, which is not affected by, or involved in, the proceedings of this cause. Respondent joins in the prayer of the bill for the construction of the will of Oliver Beirne, as far as relates to tire Walnut Grove plantation in West Virginia, and asks that her rights in said property, both present and prospective, may be declared and established.”
In March, 1889, an interlocutory decree was signed by the Circuit Oouij for Monroe County, West Virginia, referring the cause to Commissioner M. I. Kester, who was directed to report regarding certain accounts; first, the commissioner was to ascertain all the assets of the estate, real as well as personal, of Oliver Beirne, deceased, showing what part, if any, was in Louisiana. The commissioner made a report in which he refers to the said notes as part of the assets of the succession of Oliver Beirne.
In June, 1889, the Chancery Court decided that Oliver Beirne bound himself in written acts for the care and support of his grand-daughter, Susan Beirne Robinson, and that the estate was so bound that the court deemed part of the proviso of the will not to be to her, Susan Beirne Robinson’s, interest, and declined to accept it, and declared that the executors of the will 'had no interest in, or right to, or authority over, the Walnut Grove farm, or to its rents or revenues, and the court also decreed, among other things, that should Nannie Von Ahlefeldt die in the lifetime of Susan Beirne Robinson, and the latter should die unmarried, and without issue, that the said Walnut Grove farm should and would pass in fee simple to the Beirne heirs, and that the report of the commissioner, Kester, to which there was no exception, be confirmed. The case was, afterwards, confirmed on appeal, save in one particular, [551]*551not noted for the reason that it has no bearing here. It appears that the alleged owners of the Von Ahlefeldt notes, the Miles children, four of whom were minors, acting through their father by virtue of a decree of the District Court of this State, on the advice of a family meeting, purchased from Mrs. Von Ahlefeldt, the maker of these notes, the property in this State conveyed by the late Oliver Beirne to Mrs. Von Ahlefeldt, and, in addition, the IToumas place adjudicated to Mrs. Von Ahlefeldt at a public sale. The recitals of the deed from Mrs. Von Ahlefeldt to the Miles children recite that the vendor, Mrs. Von Ahlefeldt, was a particular legatee for the sum of two hundred thousand dollars, and the sale was made upon the vendees paying to vendor the sum of three hundred thousand dollars, as follows: one hundred thousand dollars in cash, and two hundred thousand dollars in instalments, “the same to be in full payment of the legacy and all of Mrs. Von Ahlefeldt’s interests” in the succession of Oliver Beirne, and of the further consideration of the return by the parties, i. e., the Miles children, of the ten promissory notes for the sum of one hundred thousand dollars each.
It is, also,' in proof, as alleged, that the Miles children, purchasers from Mrs. Von Ahlefeldt, conveyed this property (except that part of it situated in New Orleans) to the Miles Planting and Manufacturing Company, Limited. The recited consideration in the deed from the Miles children to the aforesaid company was the sum of five hundred and fifty thousand dollars.
It is in place here to state that the will of Oliver Beirne, to which we have already referred, was filed in the District Court of this city, and on this will the succession was therein opened. The property of the succession was sold; the charges and expenses were dédueted and the balance was distributed among the heirs. Susan Robinson was allowed her portion, amounting to about six thousand dollars, which was sent to Mrs. Von Ahlefeldt. The will was probated in 1890, and immediately afterwards this amount was sent to her for the account of Susan Robinson.
The defendants, in the lower court and on appeal to this court, plead res judicata, based upon the will probated in West Virginia, approving the inventory of the property according to the laws of that State, where the testator resided, embracing the ten notes of Mrs. Von Ahlefeldt, which were secured by mortgage and vendor’s privilege on property situated in Louisiana, also based on the fact, to which we have already referred, that the executors of Oliver Beirne instituted a proceeding in [552]*552chancery in the Circuit Court of Monroe County, West Virginia, against all parties concerned, including the Miles children, Susan Beirne Robinson and her father, Henry A. Robinson, who was her guardian up to the time of his death; and on the additional fact that one of the commissioners submitted a statement and finding of the court showing, defendants assert, the disposition made of the ten notes executed by Mrs. Von Ahlefeldt of one hundred thousand dollars each, which recognized them as the property of the Miles children, to whom they were delivered by virtue of the will, the proceedings to which Susan Beirne Robinson was a party and judgment in chancery decreeing these children to be the owners. They aver that all these proceedings are binding on plaintiffs; that they cannot be collaterally attacked; and that they constitute a final proof of the respective rights of the parties. Defendants, in support of this plea, also invoke proceedings in Louisiana, under which authority was given by the District Court of their domicile to those of the Miles children who were minors, to deliver the Von Ahlefeldt notes, which they assert they own as legatees, and accept in place thereof the property transferred by Oliver Beirne to Mrs. Von Ahlefeldt.
There was judgment in the District Court for the defendants and the plaintiffs prosecute this appeal.
Opinion.
We take up, in the first place, the plea of res judicata, as it is the first put before us for consideration. If the notes in question were mere paper promises to pay, because of the alleged simulation, then the action of the court in West Virginia in a cause in which it was not presented, could not give, them consideration and validity here as notes secured as to their payment by mortgages on Louisiana property. It does not appear satisfactorily that these notes were within the jurisdiction of the court of West Virginia at the date that the judgment was pronounced, which is pleaded as res judicata. We are certain that no such issues as those presented here were ever raised before the court of West Virginia. In the proceedings there, the averments are that the property in Louisiana, at any rate that on which there was a mortgage, was not to be considered. The court in West Virginia passed upon the issues raised by the parties. We do not think that the question of title to the Louisiana property was passed upon at all. In order that this plea of res judicata may be of any avail, it must appear that the mat[553]*553ter at issue was decided in the first suit. The incidental mentioning of the notes by the commissioner, Hester, after they had been delivered to the Miles heirs, did not have the effect of investing the court of West Virginia with jurisdiction to determine questions of title to Louisiana property. The lex rei sitae must be held to govern.
The immovable property of a non-resident is subject to the laws of the State. C. C. 9. We have not found that any action on the part of the court in West Virginia had the effect of removing the property from the control of that rule. The successions of persons domiciled out of the State must be opened and administered as are those of persons domiciled in the State. This is the jurisprudence, and furthermore it is one of the textual provisions of the Civil Code. C. C. 1120.
Having arrived at the conclusion that the proceedings in West Virginia can have no effect upon the rights of persons to property in Louisiana, we are brought to a consideration of the question of simulation. As revealed by the record, the design of Mr. Oliver Beirne to avoid the Louisiana laws regarding forced heirship begins from the date that he chose to purchase the Walnut Grove plantation from his son-in-law, Henry A. Robinson. We have noted that in this deed he manifested a desire to have his grand-daughter, Susan Beirne Robinson, taken care of and protected during her natural life. He was at the same time evidently, if anything, more solicitous that after his death his property should pass to his other grandchildren, the children of William Porcher Miles. His object is made more evident by the stipulation contained in his deed to his son-in-law, Henry A. Robinson, quoting from the deed, “that Henry A. Robinson reliquishes and releases to said Oliver Beirne and to his heirs, all rights, title, or claim he has or might have by virtue of his being the father and natural guardian of said Susan Robinson.” We may as well state in passing that while such a stipulation may be made in West Virginia, it is not valid in Louisiana, being against the policy of her laws to permit heirs to dispose of rights of inheritance. One cannot renounce the estate of a living person.' O. O. 1887. Nemo est haeres viventis. (Coke Litt. 226.) No one is the heir of a living man.
It follows that though this stipulation may have been valid in West Virginia, it cannot, as a consideration óf any sort, have bearing upon any issue involving title to property in Louisiana. As relates to the forced heirship here, the remuneration can have no effect. It must be considered as a nudum pactum. Oliver Beirne, after having thus stip[554]*554ulated for his grandchild, Susan Beirne Robinson, constituted his other grandchildren, the Miles children, his universal legatees. They were to become, such was his intention, the beneficiaries of the relinquishment made by Henry A. Robinson in his (testator’s) favor. Long'prior to the sale noted in our statement of facts, which he made to Mrs. Yon Ahlefeldt of all his Louisiana property, he directed her to employ General Miles as her agant. In the first section of his will he declares tha Í. he has made provision for the comfortable care and safety of Susan Beirne Robinson. The inference is that he looked upon the provision he had made as ample (as it was when considered as a mere question of fact without regard to law and forced heirship) and that the remainder of his property would be inherited by his other heirs. He made no express mention of the Louisiana property in his will. It is only some time after, about two years, that he directed his executors in a letter addressed to them to deliver the ten notes of one hundred thousand dollars each, made by Mrs. Yon Ahlefeldt, asserted purchaser of the Louisiana property, to the Miles children after his death, thereby showing that he had in contemplation the execution of just such a deed as Mrs. Yon Ahlefeldt executed when she conveyed the Louisiana property to the Miles children in 1889. He looked forward to the transfer of the property to these children. The conclusion is irresistible that it was with him the moving cause in placing the property in the name of Mrs. Yon Ahlefeldt. As relates to him the sale was not real. It was only a paper title made with the view of carrying out his intention regarding his heirs which happened not to be in accord with the laws of this State.
In leaving this branch of the case, we must say that Oliver Beirne only sought to carry out the natural feeling of the father who seeks to transmit his own to the children of his own blood; a feeling fostered by the forced heirship of the civil law which happened to be in the way of his cherished purpose.
The argument presented with force and clearness has not convinced us that the title of Mrs. Yon Ahlefeldt, in so far as she is concerned as vendee, was more serious than it was on the part of her father, Oliver Beirne, the vendor. After the sale and the vendee’s asserted possession, the guiding hand of the vendor was as active as it was before the sale; not, as we take it, to suggest and advise as becomes the paler familias, but to manage and control the property as an owlier. At this point, we do not consider it necessary to dwell at length on the facts. The vendee, it may be, thought that she was the owner, that she was in some way [555]*555vested with title to the property. Her name, it is true, appeared in deeds and at the head of letters, accounts, and statements. These circumstances, of themselves, did not have the effect of changing the realty of things. She did not pay a cent on the sale. All was on credit. She bound herself to pay a round million of dollars for a number of plantations at a time when her estate amounted to a comparatively small amount. The circumstances do not recommend the sale as serious. Father and daughter cannot thus dispose of property and the disposition hold good against any one having an adverse interest. Salient facts connected with the transfer lead only to the one conclusion, the unreality of -the sale. The relationship of the parties, their interests, many of the transactions connected with the possession of the property, its management, the instruction by the vendor regarding the disposition to be made of the notes of Mrs. Von Ahlefeldt (the vendee), concur in proving that she never was the owner. These notes were instruments resorted to, to carry out the purpose of Mr. Beirne, which was to avoid the succession laws of this State, and did not represent a consideration to be paid by the maker. The confidence reposed in the daughter inspired her, in all probability, with the idea that she, being greatly trusted by her father as she was, was an owner. For the purpose of the decision we are not to consider sentiment or family ties, sacred as they are, but the cold rule that requires that all such transfers shall be sustained by valid consideration, which we do not find here. Judged by that rule, the sale is wanting in one of the most important essentials of a sale, that is, the consideration, the price.
We have seen that, in turn, Mrs. Von Ahlefeldt conveyed the property thus placed in her name to the Miles children. We are now brought to a consideration of such rights as these children may have acquired as vendees. We do not understand that they are charged with having taken part in the simulation. The averment as to them is that the interest of Susan Bierne Eobinson, as forced heir, having attached to the property prior to the sale of Mrs. Von Ahlefeldt to them (the Miles children), that the sale, in so far as it purported to convey her interest in the property, was the sale “of a thing belonging to another” and, therefore, null. C. C. 2452. Plaintiffs further avér that the purchasers, the Miles children, knew that the conveyance to them embraced the legitime of Susan Beime Eobinson, and, in consequence, were in bad faith.
With reference to a recital in the deed- under which they owned, and [556]*556in a resolution of the Board of Directors of the Miles Planting Company, authorizing the purchase of the property from the Miles heirs, the property is referred to as property inherited from the late Oliver Beirne, and the purchasers do not seem to have taken any pains to have concealed the fact. The expression was faithful to the facts.
INow as relates to the price paid. Part of it, at least, was real. The facts are that Mrs. Von Ahlefeldt would not sell to the Miles children without the three hundred thousand cash. If it went toward the legacy left to her by Beirne and the legitime to which she was entitled, it was a payment made in accordance with the terms of the will of the deceased. It was a real and substantial consideration. Furthermore, contradictorily with all the parties concerned, the succession was settled in West Virginia, and the notes in question were delivered to the Miles heirs. Subsequently the will was registered in Louisiana in a court of competent jurisdiction, and again with the consent of all the parties concerned, the possession of the Miles heirs was recognized. The proceedings may be voidable, but they are not void.
The Miles heirs went into possession under a will, and one in possession under a valid will is reputed to be the owner as long as the real proprietor does not set up claim. The co-owner who accepts and consents to his co-heirs and co-legatee going into possession cannot persuasively charge his co-heir with being in bad faith. Le legue de memo que la donation est un juiste titre qui est de la nature translative de proprieté qui doit par consequent donner aU legataire le droit d’acquerir par prescription la chose qui lui a été delivre acetitre lorsque celui qui le lui delivre n’ etait pas propriétaire pourvu que legataire etait de bonne foi. Oeuvre de Pothier (Dupin), Vol. 8, p. 418.
The effect due to the will of Oliver Beirne presents the next ground for consideration. Up to this point, we have not greatly differed from the learned counsel for plaintiffs. But there is no good reason suggested why this will should be entirely ignored. The will, as made, was in nowise void. The only objection that could have been made to it was that it should have been reduced to the disposable portion. The article of the Civil Code on the subject is quite clear and to the point ■ and entirely saves the will from successful attack on the ground of absolute nullity. Article 1502, C. C., sets forth 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
[557]*557This, as an abstract proposition, we take it, is not seriously controverted.
Taking up the practical side, plaintiffs’ counsel insists that upon the death of Oliver Beirne, Susan Beirne Eobinson, as one of the forced heirs, became entitled, as owner, to the forced portion; that under our jurisprudence the legal heirs become seized of the ownership and possession of the property and the rights of their de cujus. Counsel quote from the Civil Code an article proclaiming that the 'heirs are seized of right by the death of the de cujus of all the property, and, in consequence, the universal legatee must address himself to the heir for his legacy. C. O. 1607. This is unquestionably true, and is the correct course to pursue in order to obtain possession of a legacy in the possession of the heirs. But if the heirs are not in possession, the legatees are not bound to look to them for the possession which they have not in themselves. It is also true that the heirs are primarily entitled to possession; but if they, for good reasons, are not in possension, and the legatees have the possession of the property in good faith, they are not bound to bring an action to recover a possession which they already have. The Miles heirs are in possession in good faith under the will of Oliver Beirne. We have noted that this will was registered here; property was sold and proceedings had with all parties concerned and the succession was finally settled in this State without the least objection on the part of any one (all the heirs accepted as their portion the amounts allowed by the will) and the Miles heirs were left in possession of the property. They are in possession by order of the court. Without a whisper of opposition from any one, they have each accepted the amount distributed in accordance with the final account. Furthermore, the succession of Oliver Beirne was settled in West Virginia contradictorily with all concerned; not the least objection was urged to the possession of the Miles heirs. A possession thus acquired Is surely not one in bad faith. They must be considered as in possession and entitled to all the rights such a possession affords. It is true that 7e morí saisii le vif, but the heir may abandon the right laid down in this maxim. In Succession of Bellock, 29th Ann. 154, to which our attention is directed by counsel for plaintiffs, the possession was entirely ex parte, and, in consequence, null and void. There is nothing of this sort here. We are not informed that there is any defect or imperfection in any of the proceedings under which possession was given to the Miles children. If there are any such irregularities, it is settled [558]*558in our jurisprudence that one cannot attack them in a collateral proceeding. The defendants, who are also forced heirs, have, in effect, demanded and obtained delivery. Plaintiffs, on the other hand, are not heirs in possession with all the advantages of joint ownership. We do not think that they are entitled to the latter, as the universal legatees are legitimately in possession, as before stated.
The right of heirs, not in possession, to the legitime, next arises for consideration and determination.
Plaintiff insists, as we understand it, that whether the heir is in possession, or is out of possession, that the reduction takes place of right, arriving ex propria vigore. Our study of the case has not resulted in our arriving at that conclusion. The heir, in our opinion, must institute an action in reduction as was done in the alternative in this case, and he is bound by all the rules laid down in matter of the indisputable quantum. He must deal with an inheritance, and he is not co-owner against whom no prescription can be pleaded. In one of the earliest decisions of the court, Justice Martin said that a donation mortis causa in excess of the disposable portion, is not void, but that it is only reducible, and that the donee or legatee does not hold as a co-tenant with the plaintiff. Toten vs. Case, 7th N. S. 261. In another case the court said: “The disposition in her favor was not null, but only reducible to the disposable portion, and whether or not it was reduced or not depended upon the future action of her children.” Young vs. Cage, 6th Ann. 414. In Ripoli vs. Morina, 12th Rob. 552, cited by plaintiffs, there was, as we take it, no question of prescription presented. The court did not treat the title conveyed as void. If it had, the following would not have found place, arguendo only, in the opinion. “We agree with Toullier, loco citato, that all that the law has done in favor of a purchaser in good faith is to give him the benefit of prescription of ten and twenty years though the property so purchased may belong to another person.” The question of prescription will be considered hereafter. We only quote, as relates to prescription, in support of the proposition that its application by the court shows that it enters into the question in a claim for property on grounds, in some.respects, similar to those now under consideration. Gardner vs. Harbour, 5 M.408; Carroll vs. Cockerham, 38 La. Ann. 813. In all these cases the heir is held to own an interest in the succession. It is a question of inheritance. It is true that inheritance is a title of [559]*559ownership in the succession, but it is none the less subject to the rules governing inheritance. In Tessier vs. Eoussel, 41 Ann. 474, it was said: “Every donation,, however and whenever made, is, therefore, subject to an implied resolutory condition, binding on the parties thereto and their privies, to the effect that if, at the death of the donor, he shall have forced heirs, and the donation shall prove to be in excess of the disposable portion as then ascertained, the donation will be resolved to the extent of such excess. We have read with close attention all the decisions cited by counsel for plaintiff and the paragraphs of the commentators on the subject. They do not controvert the proposition that the reduction of the donation can be sued for only by the forced heirs.” D’apres le droit eommun c’est du reservataires qui protend que sa reserve est entamee qu’incombe la charge d’en faire le preuve. En principe un heritier a reserve ne peut demander la reduction des dons on legs faits a son co-heritier qu’autant qu’il a etablit prealablement par la liquidation'de l’actif et du passif de la succession que- ces dons on legs excedent la quotité disponible. Laurent, t. 12, No. 145; Baudry-Lacantinerie, t. 2, No. 430.
The proof of excessive donation is with the forced heir. He, in law, can not ignore the will, take possession, despite the adverse possession, of another and insist on being considered as a joint owner.
The Cox vs. VonAhlefeldt case is cited supra several times as sustaining all the propositions of law at issue, and consequently (in that view) that it sustains the proposition that the forced Heirs are entitled to every piece of property as owners to the extent of the legitime. We have weighed every sentence of the opinion. It holds that children can not he deprived, by their parents, of that portion of the estate which the law reserves for them, conveying .the idea of ownership. After discussing the subject at some length, the court says: “whether or not forced heirsship is ownership in its fullest sense, or whether the forced heir is not within the rule le morí saisit le vif, seems to us a discussion not at all calculated to aid the defendant’s case. It is quite certain that the right of action of the forced heir for his legitime springs into existence with the death that calls the heir to the succession. The incontestable right of the forced heir of Mr. Bierne the plaintiffs seek -o exercise, and that other question, whether the plaintiffs, as collateral heirs of the forced heirs, are clothed with her rights, remain for examination.” The question was left open for future consideration. The last paragraph of the syllabus written by our most worthy associate, the [560]*560late Justice Miller, wlio was the organ of the court, as we take it, throws light upon the views of the court. We think, as expressed in the opinion, that the forced heir can not be deprived of his legitime by the donation or simular disposition of the deceased Bierne, and that the suit is “not the revocatory action,” but one of reduction or revendí - cation to recover the legitime.
D’abord il est constant que la detraction de la legitime ne doit etre faite qua pres toutes les dettes et les frais funeraises payes. La loi 8, See. 9, D. de inofficiosi testamento ne laisse la desús aucun doute.
Merlin, p. 7, Yol. 7.
We conclude this branch of the case with the statement that the legal remedy of the heirs of Susan Bierne Robinson is by an action of reduction, such as brought by them in the alternative, but here they are met by defendants’ plea of prescription of five years. L’action en reduction est prescriptible. Baudry, p. 309.
Plaintiffs insist that the question of prescription is taken out of the case by the former decision of this court. If prescription was suspended by the imbecility of the heir from whom plaintiffs inherited, without interdiction, the five years have not elapsed. If it was not suspended, then the prescription pleaded operates as a bar. As relates to the facts, it is admitted that this heir was an imbecile from her birth to the date of her death. In the decision cited, the court said: “The pleas of prescription are met by the allegations of the insanity of the grandchild, and if these allegations are true, there was a suspending of prescription.” The opinion did not deal with the facts before the court, nor were opinions expressed regarding the subject such as to leave no doubt of the intention to deal with the question finally, and to express views not to be reconsidered in the case. The decree remanded the case to be tried on the merits. Moreover, it is the decree which governs and not the opinion. Plaintiffs earnestly press upon our attexxtion the rule contra non volentem agere non currit prescriptio and cite a number of decisions in which effect was given to it. True, it has been held that an administrator can not sue a succession he represents and to that extexxt the rule just cited was sustained. It will be observed that 'the deeisioxx. was grouxxded on the fact 'that the adxnixiiistrator positively could xxot sue. In another of the cited cases, it was decided that one can not defeat the rights of another by rendering it impossible to sue him by concealixxg himself. In all the cases cited, the principles of suspension of prescription rested on the idea that suit to interrupt pre[561]*561seription was impossible for the reasons before stated or others similar. We have not found a decision in which it was held that insanity or imbecility was a good-ground to suspend prescription. A suit in the name of Susan Beirne Robinson would have interrupted .prescription. For that purpose, it would have been sustained. She was a person in law and that is all sufficient, as relates to a suit to interrupt prescription. There are courts in other jurisdictions which have gone much farther and held that a judgment or decree against an insane person who is properly brought before the court is valid and binding, and neither void, nor voidable. The following is the Article of the Civil Code we are called upon to interpret: “Prescription runs against all persons unless they are included in some of the exceptions established by law.” Article 3521. We have seen that the afflicted person was one who could sue; she was not interdicted, and for that reason her case does not come under the protection of an article adopted for the protection of minors and interdicts. Plaintiffs urge that, although this heir was not interdicted, her mental condition was passed upon by the court and this is equivalent to an interdiction. Under the laws of West Virginia, interdiction must be pronounced, as under the laws of Louisiana. To sustain this position would be giving legal effect to facts without regard to form, in the face of the laws’ declaration that prescription runs against all persons except interdicts and minors.
The Supreme Court said in Hansell vs. Hansell, 44 Ann. 548, that the courts of this State must deal with an absent insane person domiciled elsewhere as a sane person until the courts of his domicile have interdicted him.
The following actions are prescribed by five years: “That for the nullity and rescission of contracts, testaments, or other acts. That for the reduction of excessive donations.” C. O. 3541. Without an authority bearing directly upon the subject to sustain a different conclusion, in view of the Article of the Civil Code, our decision is that prescription ' is suspended. One of the uncles and heirs of Susan Beirne Robinson died in November, 1894, after the death of Susan Beirne Robinson, leaving as hiá 'heir two minor children, Eppes and Gwin Robinson, represented by their guardian Lizzie P. Robinson. They being minors, under the letter of the law, prescription was suspended from the date of the death of their father until this suit was brought by their guardian. As to these minors, the five years had not elapsed. They, in consequence, are entitled to one-sixth of the legitime of Susan Beirne Robinson.
[562]*562Recurring to the question of suspension of prescription, plaintiffs object, as relates to this particular issue, for the reason, as they argue through counsel,'that the right to reduce is necessarily in suspension until the simulation invoked by them is decreed, and that until then no question of prescription can arise: In answer we deem it proper to state that if the sale is simulated, the ownership of the testator’s succession is reinstated the same as if there had been no sale. The will is in evidence showing the interest of the heirs and legatees to the property. The evidence does not connect the Miles children with any simulation. As relates to the property or their rights to it, they have not been forfeited by claiming the property they bought and on which they paid a large amount. We are not of the opinion that the defense made by the Miles heirs precluded the plea of prescription. Plaintiffs also urgethalt there was fraud and that, in case of fraud!, prescription alone runs from the date of the discovery of tile fraud. We think that this is met by the statement that there was nothing in the nature of fraud in matter of the< will under which all concerned received benefit. The Miles heirs had naught to do with the concealment of the facts. We have seen that they were third persons not connected with the simulation. The deeds were of record. The failure to attack them in time is not due to any act of these heirs, but to the fact, as we take it, that plaintiffs were not aware of their rights under the laws of Louisiana which are different, as relates to inheritance, from those of the State in which the estate was domiciled and in which plaintiffs reside. Plaintiffs also contend that the question of ownership under the will is not at issue. We do not think that this contention of counsel for plaintiffs presents ground enough to remand or dismiss the case in order that this new issue may be raised.
Plaintiffs and defendants have introduced all evidence necessary in rendering a decision. Plaintiffs made the will a part of their petition. We therefore pass on the rights of the parties thereunder. The proceedings in this State, on. the will, are before the court and all the points connected therewith have been exhaustively argued and considered.
Defendants, on the other hand, urge that the case should be dismissed because plaintiffs have not chosen to bring a direct action attacking the will and claiming the legitime.
We appreciate the force of the position. None the less, believing that it is in the interest of all concerned that this litigation be brought to a close, we have passed upon the issues presented by the record and [563]*563the evidence. We would not dismiss the case in any event, as the right made evident would require that it be remanded and not dismissed'. The result would be, in the former case, that it would be brought back on appeal on precisely the same issues as are now presented by the evidence, if not by the pleadings. . ,
'These are our conclusions, arrived at after carefully thinking over all the questions presented. Several are of the highest importance and have direct bearing on the social order. If a rehearing be applied for, w© will reconsider these questions, and give the several points more than usual consideration.
It is therefore ordered, adjudged and decreed that as to Mrs. Margaret E. Cox, Edwin P. Eobinson, Walter EL Eobinson and Francis Y. Eobinson, the decree of the District Court is affirmed.
It is further ordered, adjudged and decreed that as to the minor children of Samuel A. Eobinson, before mentioned, it is avoided, annulled and reversed; and
It is now ordered, adjudged and decreed that they, the said children, do hereby have judgment against and recovery of the defendants for one twenty-seventh (1-27) of the whole property in question, and they are further recognized as entitled to an accounting of the rents and revenues of said property from said defendants from the date this suit was filed and that the case be remanded to the District Court for the accounting by the said defendants for the rents and revenues from said date.
Defendants, as relates to the interest of the minor children named, are to pay the costs of both courts. Appellee is to pay the costs of appeal.