EVERETT vs. M'KINNEY AND WIFE, 7 La. 375

Bullard, J., delivered the opinion of the court; The only question presented in this case for our decision, is whether the petition sets forth any matters of probate jurisdiction. The petition begins by alleging that he is a.lawful heir of one Hyman, whose succession is open in the parish, and unadministered.

That one of the defendants claiming to be the widow of the deceased, took possession of the estate, consisting of land, slaves and moveables, that it was sold by her without an observance of the provisions and formalities of law, and that the proceedings which have been had in the court to which the petition is addressed, are null, because no attorney of absent heirs was appointed, and no account of any administration was made and returned for several years after the opening of said succession.

He then prays that the widow, who is said to have intermarried with the other defendant, and to one or both of whom, letters of curatorship have been granted, maybe cited, &c., that he may be recognised to be a lawful heir of the deceased, that the sale of the said estate and all the proceedings had in this court, may he annulled, avoided and reversed, and the petitioner thereupon put in possession of said estate, or such portion thereof, as may be adjudged to him, and for general relief.

It is evident, the plaintiff’s principal object is to recover the property of an estate irregularly sold, and it is clear the Court of Probates cannot inquire directly into the title to real estate, though there are cases in which it may be done incidentally, for certain purposes. It is alleged, that the property has been sold, but to whom is not shown, nor is the supposed purchaser macje a party. It is true, the plaintiff states that letters of curatorship have been granted to one or both of the defend-ants3 but he does not ask that the letters of curatorship may be vacated, nor for an account of administration.

It is not enough to allege that a defendant is curator to give jurisdiction to the Court of Probates of the subject matter not in ^ itself of probate jurisdiction. The same remark may be made in relation to the allegation that the plaintiff is an heir, and the prayer that he may be recognised as such. The question of heirship may be inquired into, in any court of original jurisdiction, as a fact, on which the rights of the Parties may depend. As an abstract question, it is no more of the exclusive competence of the Probate Court, than of any other.

An heir, in order to sue for the property of an estate3 which he claims in that character, is not obliged, first, to resort to a Court of Probates, to establish the fact of his heirship. The Probate quH'e ^directly into the title to TGcll estate though there aré k Sm%mbe'done nough to allege isaLratoreofTn Jurisdiction ^to the Court ofProjectCSmatterSnot batejm'isdietKiiu It has been attempted to show, that this is in fact, an action to annul judgments, orders and proceedings in the Probate Court, and consequently, that no other court could take cognizance of it.

But the orders, judgments and proceedings, are not specified; on the contrary, it is alleged, that the estate is unadministered, an'd no authority to administer is asked. It is essential to an action in nullity of a judgment, that it should be brought against a person who was a party to the judgment. This is not alleged in this case. It is vaguely stated, that all the proceedings and orders are null, without showing that the defendants were parties, much less, that the plaintiff was. In this respect, this action has not the semblance of an action to annul a judgment.

We infer from the whole tenor of the petition, taken together, that the allegation of nullity in the proceedings, was merely incidental to the principal demand, to wit: the recovery of property illegally alienated, belonging to the succession of Hyman, and that there is no question of probate jurisdiction stated, which the defendants had any interest in contesting. We are, therefore of opinion, that the court, did not err, in sustaining the exception. It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.