Succession of Allen

The opinion of the court was delivered by Fenner, J. The appellants claim to be heirs of the decedent, Allen, and appeal as third persons, from a judgment rendered in the court a qua, recognizing his widow as sole heir, and putting her in possession of the estate, to which judgment the appellants were not parties. Their interest in the proceeding and their right to the appeal are based on their allegation of heirship, which is based on no proof save the exparte affidavit of one of them attached to the petition of appeal in the lower court and verifying the facts therein alleged. The appellee has filed a formal answer to the appeal in this court, in which she denies that appellants are relations or heirs of deceased, or have any interest whatever to maintain an appeal. The jurisprudence of this court settles, beyond dispute, the couise to be pursued in such a ca.se. If a third person appeal, and the facts on which his right of appeal is based be denied, the' case will be remanded to try that issue. Hermann vs. Smith, 6 N. S. 161; Oakey vs. Phillips, Id. 306; Taylor vs. Jeffries, . 10 La. 438; Désormes vs. Désormes, 15 La. 15; Suc. Henderson, 2 Rob. 391; Suc. Lauve, 6 An. 579; Suc. Bailey, 24 An. 486. [1073] These authorities are hot controverted or overruled by those cited by appellant, viz.: Payne vs. Ferguson, 23 An. 581, and Cooley vs. Cooley, 38 An. 197. In the first, the allegation that appellant was a creditor was sustained by an authentic copy of his judgment annexed to his petition. In Cooley’s case there was no denial that appellant was a creditor, ■but merely a genial of his right of appeal as. a legal consequence of his being a creditor. We find some difficulty in .understanding the object of this appeal, •or how the judgment appealed from practically aggrieves appellants, since they were not parties thereto, and it can not operate as res Judicata against them. Sue vs. Viola, 2 An. 986; Williams vs. Trepagnier, 4 N. S. 343; Young vs. Cenas, 1 N. S. 308. If, however, they are heirs, and desire to annul this judgment by ■ appeal, we cannot controvert their right to appeal. But they must • first establish their right and interest. It is, therefore, adjudged and decreed that this cause be remanded to the lower court, with directions to the judge to hear testimony as ■to the heirship of appellants and their right to appeal.