TRAHAN'S HEIRS vs. ARDOUIN'S HEIRS, 11 La. 390

Carleton, J., delivered the opinion of the court. The petitioners allege, that they are the collateral relations, and heirs at law, of Marie M.

Trahan, who died leaving considerable property, both real and personal, held in community with her husband, Etienne Ardouin ; that the heirs of said Ardouin by a former marriage, claim and took possession of the portion of the estate to which said Marie was entitled, in virtue of a nuncupative will under private signature, dated in April, 1839, which the petitioners allege to be null and void, for the following reasons set out in their petition, viz: that it was never executed or consented to by the testatrix ; that she never presented it to the witnesses as is pretended; that she never dictated it to the person who wrote it; that she never declared it to be her last will and testament, nor declared that she had caused it to be written out of her presence; that she never signed the same or made her ordinary mark thereto ; and finally, that there are but three subscribing witnesses when five could have been easily procured.

The defendants answer by general denial, and aver that they are the testamentary heirs and universal legatees of said Marie, and have taken possession of her estate as her testamentary heirs, under said will, and disposed of the same ; that the will was made in. the country where three witnesses only could be obtained, which they allege to be sufficient in law.

The defendants further insist,, that if the will be declared void, they are entitled to be reimbursed the expenses incurred, an account of which they exhibit; that they are moreover entitled to the amount of property brought by said Ardouin into marriage, as also to one half of the community of acquests and gains, all of which, they aver, to be one thousand dollars more than is stated in the petition, and pray for the liquidation of the same in case the will be void. The cause was submitted to a jury who found a verdict for the plaintiffs.

After an ineffectual effort to obtain a new trial on the part of defendants, the court pronounced its judgment, and they appealed. Our attention is first drawn to a question of jurisdiction raised in argument by defendants’ counsel, who insists that the Court of Probates, and not the District Court, is the only tribunal before which the validity of the will can be tested. This point has just been settled in the case of Marie O’Donogan, wife of James Bonner vs. William G. Knox, ante, where we determined that the District Courts had jurisdiction in such cases.

The district risdTction'of ca-succession. ses, in which the validity of will is contested, difFercnt3se t s° heirs claiming a At the trial of the cause, defendants’ counsel took a bill . , , , , , of exceptions to the opinion of the court, who refused to performer will of the testatrix by public act, to be read in evidence, to show that it was always her intention to leave her property to the family of her husband. This will was dated in 1826, and became void by the death of her husband, the instituted heir, who died before the testatrix. We think the court did not err.

The question was not, what was the intention of the testatrix, but whether the will containing that intention was executed in due form of law. We have looked carefully through the testimony in the record, and think the plaintiffs have made out their case. The controversy turned mainly upon matters of fact, of which the jury were the best judges, and we see no reason to be dissatisfied with the judgment of the court. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.