Succession of D'Aunoy

The judgment of the court was pronounced by Rost, J. This controversy arose frofn the decision of this court in the case of Philonise Olivier v. Blancq, dative testamentary .executor of D’Aunoy, 2 Ann. Rep. 517. It having been shown in that case that the plaintiff was the concubine of the testator, we disregarded the testimony adduced to show the value of her services in his house; but we held that dispositions mortis causa in favor of concubines were authorised by law, subject to be reduced in case of excess to one-tenth of the value of the succession. There being no evidence in the record that the donation was excessive, judgment was rendered in favor 37 of the plaintiff for that portion of her claim resting upon it, and for the farther sum of $40, advanced by her on account of the succession, together with legal interest on the whole. The executox-, in rendering his account, placed Philonise thereon for the amount of this judgment, and two of the heirs have filed an opposition, alleging that the sum allowed exceeds greatly one-tenth of the value of the succession, and praying that it be reduced accoi'ding to law. They do not object to the allowance of $40. Philonise, in answer to the opposition, filed the exception rei judicata, and further aveired the justice of her claim on the grounds taken in the oi'iginal suit. The court below sustained the exception, and the opponents have appealed from the judgment dismissing their opposition. Thei’e is no eiTor in this judgment. If the claim of the plaintiff is viewed as a debt, the law made it incumbent upon her to litigate and establish it contradictorily with the executox-, aud the judgment obtained against him, after an earnest coniestatio litis, cannot again be enquired into by the heii's, and must be classed as a liquidated debt of the succession. C. P. arts. 986, 987. If, on the other hand, the ‘claim is considered as a moveable legacy under a particular title, the dative executor had the seizin of the succession, and the delivery of the legacy was to be demanded from him.- C. C. arts. 1623, 1664. In all personal actions the executor who has the seizin is the legal representative of the succession, and judgments x'endex’ed against him are conclusive upon the heii’s, when neither fraud nor collusion are alleged and pi’oved. C. P. 123. 2 Pothiei-, Oblig. no. 52. 5 Toullier, Brux. ed, no. 198, Randall’s Widow v. Baldwin et al. 4 Mart. 456. Judgment affirmed,