Succession of Drysdale

50 So. 35, 124 La. 268, 1909 La. LEXIS 462

Opinion

BREAUX, C. J.

There are two orders of appeal and two bonds.

The issues, have been unnecessarily divided in the district court.

As they are before us in two separate appeals without objection, they will be disposed of separately.

One of the appeals was taken from a final judgment rendered against the executors in the suit of the succession of Julia Pike Drys-dale on rule to probate the last will and testament of the deceased, the late Mrs. Drys dale.

In that appeal, the judgment was reversed, and the case was remanded to the district court for further trial.

The other appeal was taken from a final judgment rendered against the executors in the suit of the succession of Julia Pike Drys-dale putting the legal heirs in possession of her estate.

This judgment is dated the 31st day ot July, 190S.

It is before us on appeal, and the necessity presents itself of making some disposition of the appeal.

We have concluded to make similar disposition of this appeal as that which was made in regard to the appeal before mentioned The judgment is set aside, and the case remanded for further trial, with leave to amend pleadings.

It follows from the foregoing, we decline to send the heirs into possession of the property of the succession.

We make no question but that ordinarily an heir who presents himself and asks to be sent into possession should be sent into possession if the succession is intestate.

But in this case there is a will; whether forged or not, valid or not, are questions to be decided.

Until the questions of forgery vel non, validity vel non, are decided, the question of possession will have to remain in abeyance; the status quo is maintained.

The question of the validity of the will and the right to possession will be tried together.

If for any reason the will be not valid, the heirs will have the right to possession, and it will be so decreed.

If the will be decreed valid in the district court, the right of the heirs to go into possession and ignore the will will be denied.

In each case’ the right of appeal will remain.

It is ordered, adjudged, and decreed that the judgment before mentioned is annulled, avoided, and reversed; the cause is remanded to be tried in the district court.

The costs will await the final decision of the case.