¶1The opinion of the Court was delivered by
¶2Plaintiffs seek to dismiss the appeals taken by Mrs. Nannie M. Morris, J. U. Payne, II. M. Payne, Mary I. Garrard and William Curley, on the grounds that they were co-defendants with Amelia E. Keller and others, against whom judgments were rendered on the 14th of April, 1883., and 20th of February, 1885, respectively, and who were not in court when appellants obtained their orders of appeal in open court on the 28th of May, 1885, and were not cited as appellees.
¶3In the alternative, they urge that the value of the property claimed by appellants respectively, is less than $2000, and this Court is without j urisdiction ratione materia}.
¶4The motion including these objections was filed at the term of court at Opelousas, in July, 1885, but which was not passed upon by the court, and subsequently the record was destroyed by fire. This record having been substituted for the one destroyed, the motion to dismiss was supplemented in July, 1886.
¶5In addition, a supplemental motion to dismiss was filed in July, 1886, in which are assigned the additional grounds, viz: First, that no legal order of appeal was granted Wm. Curley in his fiduciary capacity a,s curator; second, that neither Mary I. Garrard nor Nannie M. Morris were authorized by their husbands to execute their appeal bonds.
¶6I
¶7Prior to the enactment of Act 125 of 1868, amending C. P. 575, requiring appeal bonds to bo made payable to the clerk of the court which rendered the judgment appealed from, the uniform current of our jurisprudence was to the effect that, when an appeal was taken from a judgment in an action on a joint contract or in a revocatory action, all who were required to be parties below must be made parties to the appeal, though a part only have appealed, else the appeal was dismissed.
¶8*59Since the passage of that act, our predecessors have constantly held, and we think correctly, that when an appeal is granted in open court, and the bond is made payable to the clerk of the court, all persons homing an Merest are by law parties to the appeal — those who are not appellants are appellees.
¶9In Walton vs. Police Jury, 26 Ann. 356, the court said : “ The fact that only one of the non-resident parties executed an appeal bond, under an order in favor of all, cannot invalidate the appeal taken by him. Those who are not appellants are appellees, and the appellant has the right to prosecute his appeal, which is regularly taken, although his co-defendants may acquiesce in the judgment.” 28 Ann. 370, Succession of McKenna; 26 Ann. 220, Baker vs. Thompson; 26 Ann. 312, Frances vs. Lavine.
¶10The appellants have fully complied with the law, and all other parties having an admerse Merest are appellees necessarily.
¶11Appellants are clearly entitled to prosecute their appeals, although plaintiffs and appellees had obtained judgments against other defendants at antecedent terms of the court, who have acquiesced in them.
¶12Whatever may be the effect of such an-apparent severance thiough plaintiffs’ instrumentality, in respect to such other defendants, it cannot, in any way, prejudice the rights of appellants.
¶13On the alternative part of the motion, in respect to this Court’s want of jurisdiction, it is sufficient to say that while the defendants against whom judgments were first rendered, have no interest in common with appellants claiming separate and distinct tracts of land, yet, in respect to plaintiffs claim of title as heirs of their father and the revocation of the probate sale of January' 5,1870, the appellants’ claims are identical. They are inseparably blended, and plaintiffs have so treated them; and it would be against equity to permit them to gain any advantage of the appellants by reason of their having taken judgments by piece-meals against other defendants, and in some instances by default.
¶14In addition to this, plaintiffs, in their petition, show that the lands which Amelia Keller bought at probate sale were valued at $39,000, and they fail to show what the separate value of the different tracts were which she subsequently conveyed to the defendants; and, as there is doubt with respect to the value of the several properties held by the appellants, we think it our duty, under the circumstances, to favor the right of appeal.
¶15With respect to the remaining grounds, and which are contained in the. supplemental motion, filed in July, 1886— more than twelve months *60after the filing of the record — it is only necessary to observe that it came too late.
¶16“A motion to dismiss, on account of informality in the appeal bond, or order of appeal, or even the want of the latter, must be made within three judicial days after the .record is filed.” 2 Ann. 138; 3 Ann. 326; 4 Ann. 514; 6 Ann. 115; 11 Ann. 613; 12 Ann. 745; 22 Ann. 327; 23 Ann. 467; 21 Ann. 30.
¶17If these objections were not.waived by their omission from the motion first filed, they certainly cannot be entertained at this time.
¶18The motion is therefore refused.
¶19On the Merits.
¶20I.
¶21This suit was filed on the 24th of January, 1882, and has for its object the annulment of the various adjudications and sales made to the various defendants, and the recovery of the property described, with its revenues.
¶22Plaintiffs are the sole surviving descendants of Lewis A. and Amelia E. Webb. The latter survived the former’s death, which occurred in April, 1861, from whom they claim to have inherited the property in dispute.
¶23On the 6th of July, 1860, Dr. Webb made an olographic will, by the terms of which he gave and bequeathed all of his estate in full property, after the debts were all paid, to his wife, Amelia Webb; and constituted her the executrix, with full seizin.
¶24Below the signature is written this memorandum, viz: “ By this will I do (not) disinherit my child, Susan Charlotte Webb, but it is made in the event of her death;” and which was signed, without date.
¶25At the request of the surviving widow, Amelia Keller, the will was probated, letters testamentary issued, an inventory taken, and she was duly qualified and placed in possession of the testator’s estate. No further proceedings were taken until after the close of the war.
¶26In 1868, Mrs. Amelia Webb was married to Edward Gal ligar, who died in November, 1870. '
¶27Plaintiffs’ contention is that, by her second marriage Amelia Keller “ lost the property bequeathed to her by the will … and it became vested in her two daughters, plaintiffs in this suit — she thereafter only having the usufruct of it.”
¶28In support of this theory, they rely upon R. C. C. 1753, which provides : “ If any person who marries a second time, has children of his *61or lier preceding marriage, he or she cannot, in any manner, dispose of the property given or bequeathed to him or her by the deceased spouse, or which came to him or her from a brother or sister of any of the children which remain.
¶29“ This property becomes, by the second marriage, the property of the children of the preceding marriage, and the spouse who marries again only has the usufruct of it.”
¶30Therefrom they contend that they are the proprietors of the whole property, of which they were seized by operation of law; and hence any subsequent forced alienation thereof was the sale of the property of another, and therefore void.
¶31Their argument is that Dr. Webb divested himself of all of his property by the will in favor of his wife, and she had executed the will, and gone into possession as the umwersal legatee, and the property no longer formed a part of his estate. Hence, the probate sale, made on the 5th of January, 1870, was a nullity.
¶32IT.
¶33Not contented with this averment of title in themselves as owners by operation of law, through the instrumentality of the will, they set up certain informalities and illegalities in the probate sale to Amelia Keller and the titles of her vendees, as sustaining the charges of nullity made.
¶34They are in substance that Amelia Keller never qualified as testamentary executrix,-or natural tutrix, and all acts done by her, as such, are void.
¶35That the appointment of Amelia Keller as dative tutrix was null and void, on account of the nullity of the family meeting proceedings resulting from the wow-appointment of an under tutor to fill an existing vacancy.
¶36That the order of sale was improvidently granted, for the reason that the estate of Lewis A. Webb owed no debts; and particularly, because it did not owe the debt alleged to have been due to Amelia Keller, surviving widow; or, if it did, “said claim had never been recognized, or proof thereof adduced before the family council, or before the court; and that the order had been granted without sufficient evidence.'1'
¶37That the property was sold for less than two-thirds of its appraisement, “which real and true appraisement was that of the first inventory,” taken April, 1861, and not the one made in 1869, and which they charge to have been fraudulently made “ to enable Amelia Keller to bid the whole of it in for a supposed claim due her as alleged of $40,000.”
¶38*62Tliat Amelia Keller never qualified as dative tutrix, gave no bond, and failed to cause the registration of proper certificate ‘‘and all orders and proceedings taken by her in her said capacity are null and void.”
¶39There are some other objections, but they are only in the enlargement of those quoted.
¶40To this action, appellants urged the plea of res judicata resting on a final decree of this Court in suit of Susan Webb, Wife, vs. Amelia Keller, J. U. Payne, Intervenor, 26 Ann. 596, and on the judgment homologating the executrix’s tableau of debts and distribution in the Succession of Lewis A. Webb, on the 25th of February, 1870.
¶41In their answers they denied all the averments of the plaintiffs’ petition, and alleged that they derived title from Amelia E. Keller, widow of Gralligar, who acquired on the 5th of January, .1870, at a probate sale made under an order rendered by a competent officer having jurisdiction of the subject matter and of the persons interested.
¶42All of appellants plead the prescription of one, three, four, live and ten years against the action of plaintiffs and as a muniment of their titles.
¶43The defendants, J. U. Payne aud others, alleged that they had con tested the title to the property now claimed in a litigation between Susan Webb and themselves.
¶44III.
¶45The record discloses the following pertinent facts necessary to be detailed, in order to a proper understanding of the contention of the parties.
¶46On March 16, 1869, the testamentary exeeutrix represented to the probate court “that the succession is now chiefly composed of laud and the improvements thereon, and that in order to settle the said estate, which petitioner desires to do, it will be necessary to.cause the property to be reappraised. Further represents that a sale of the property will be necessary in order to settle the succession, pay its debts and make the necessary partition between petitioner and her children, in the event of the succession proving solvent; petitioner being a creditor with a tacit or legal mortgage for some $40,000,” and she prayed for an order of sale. Accordingly an inventory was ordered and a family meeting was convoked for the purpose of giving advice concerning- the interest of the minors and of fixing the terms of sale.
¶47The proees verbal of the proceedings of the family meeting show that “ after having duly deliberated on said subject, they declared themselves unanimously of the opinion that it will be to the interest of said minors that the whole of the property belonging to the succes*63sion of Lewis A. Webb, either separate or community be sold for cash, payable on the day of sale.”
¶48The executrix petitioned for the homologation of the deliberations of the family meeting, and on the 2d of December, I860, the following-order was entered, viz : “ Let the proceedings of the family meeting-mentioned therein be homologated and approved j and let the property of the estate of Dr. Lewis A. Webb, deceased, be sold for cost, as prayed for by petitioner, and by a duly qualified auctioneer.
¶49“ Given in chambers, at Opelousas, this 2d of December, 1869.
¶50“ A. GaBRIGUES, Parish Judge.”
¶51On the 5th of January, 1870, a public probate sale was made by n duly commissioned auctioneer, of the various properties included in the inventory of Lewis A. Webb, both separate and community, and the same were adjudicated to Amelia E. Keller, surviving widow, for $25,725, with the exception of a tract of 494-94 acres adjoining the sugar plantation.
¶52On the 25th of February, 1870, the executrix filed and caused to lie duly advertised, a tableau and classification of the debts of the deceased and distribution of the assets of said estate, and due notice was given to the undertutor for the two minors, plaintiffs herein.
¶53On this tableau was entered the mortgage indebtedness of Dr. Lewis A. Webb to his surviving widow, Amelia E. Keller, aggregating $36,602 23, being the sum inherited by her from her deceased mother, Martha C. Hargrove, and which were received and appropriated by her husband, and for which amount she had and has a legal mortgage against his estate.
¶54The duly homologated tableau in the succession of Martha C. Hargrove shows the share of Mrs. Amelia Webb to have been, in exact figures, $37,289 92f.
¶55The items composing said sum are specifically enumerated on the tableau of the executrix, and it is accompanied by the declaration that her claims were duly registered in St. Landry and Avoyelles parishes.
¶56Other debts appear on said tableau, exclusive of succession debts, and charges which of themselves aggregate $7,000.
¶57On the. 4th of April, 1870, this tableau was duly homologated, and the executrix was ordered to distribute the funds realized from the sale, in accordance therewith ; and G. W. Hudspeth, one of the attorneys, testified that “the price of the adjudication was paid in actual money, but was credited on Dr. Webb’s indebtedness.”
¶58*64All other defendants acquired title from Amelia Keller, by various mesne conveyances, all translative of property, and duly recorded.
¶59IV.
¶60We will first consider the plea of res judieata.
¶61Referring to Webb vs. Keller, Payne et als., intervenors, 26 Ann. 596, we discover that the Susan Webb, who is one of plaintiffs in this suit, was plaintiff in that, praying that the probate sale herein complained of, be declared null, and “ that the property' be declared to belong to her and her sister.”
¶62The court held: “It appears to us that the title to the property-purchased by the defendant on the 5th of January, 1870, is, as to third parties, good and valid. Defendant was the executrix of the will. She obtained authority to sell the property of the testator in order to pay debts of his succession, aud to make a partition between himself and the heirs.
¶63“An appraisement of the property was ordered; a family meeting was convened, who recommended that the whole property of the succession, whether separate or community, be sold for cash.
¶64“ The undertutor concurred in this advice. The property was sold ; the defendant became the purchaser. She subsequently furnished an account of her administration, which account, after due publication, was homologated. It was after this sale that the intervenor’s mortgage was taken. The title being in the defendant, the property was hers, to do with it as she pleased. She could sell it, or mortgage it Those who dealt with her did so under the faith of judicial proceedings. To set aside the sale made under the authority of justice, and thus destroy the mortgage which was taken as the result thereof, and which was accepted in good faith, would be to make like proceedings snares instead of shields. … *
¶65“Plaintiffs’ t.utrix may have assumed responsibilities towards her, and may have been derelict in her duty. But this is no reason why those who acted in good faith, and whose acts were based upon the orders of a court of competent jurisdiction, should be made to suffer.”
¶66In so far as Mrs. Susan Quirk’s claims and pretensions are concerned, they are clearly covered by, and embraced in that decree; aud the plea of res judieata must be sustained. It does not matter that different allegations are made, and somewhat variant issues are now presented, the case is not altered, and the issue is the same.
¶67In respect to the other plaintiff, Mrs. Beulah Beggs, the decree *65quoted does not establish res judicata, but it furnishes a forcible precedent.
¶68Y.
¶69Notwithstanding the fact that the second marriage of Ur. Webb’s surviving widow divested her of all claim of title, as universal legatee, under his will — conceding arguendo that she had asserted and was previously in the enjoyment of it — and yet, the plaintiffs certainly did not, and could not, acquire any title to her one-half of the community property, which was the larger and most valuable part of the estate.
¶70Hence, the claims of Mrs. Quirk must be restricted to a one undivided fourth of the community, and to undivided one-half of the separate property of Dr. Webb.
¶71VI.
¶72The record satisfies us that Amelia Keller did not accept her husband’s succession, and never performed a single act of heirship, or assumed or held possession, as owner or legatee. But, if she had entertained such an idea she could not have successfully carried same into effect of her own free will and accord.
¶73In Bird vs. Succession of Jones, 5 Ann. 644, the Court said: “Having, as executor, accepted the trust and seizin, it was not in his power to withdraw, at his own discretion, and relieve himself from the obligation and duties which he had judicially assumed.”
¶74To the same effect are Wells vs. Wells. 30 Ann. 936; Succession of Frazier, 35 Ann. 382; and Succession of Kate Townsend, 37 Ann. 408.
¶75In this last case, this Court said : “An executor, who has qualified and who is at the same time universal legatee, cannot, b.y any act purely Ms own, cease to be executor and represent himself as sole heir. He cannot be permitted to deny his capacity as executor by setting up that he has accepted unconditionally as universal legatee, and bolds the estate, not as executor, but as owner.”
¶76These decisions have been closely followed in the more recent cases of Succession of Kate Townsend vs. Sykes, 38 Ann.,-
¶77In plaintiffs’ brief, we find the following concession on this subject, viz: “She voluntarily accepted the will of Dr. Webb and the bequest to her; probated the will; qualified as testamentary executrix under it over twenty-four years ago; and in all proceedings and pleadings by her in the estate of Dr. Webb, styled herself ‘ testamentary executrix,’ and made the sale of January.5, 1876, as such.” Citing 18 Ann. 141; 7 Ann. 617; 4 La. 61; 15 Ann. 520; 24 Ann. 301.
¶78*66Also: “Besides, we contend that the validity of the will, and its probate, cannot be collaterally attacked or questioned, as is now sought to be done.” Citing 4 N. S. 411; 8 N. S. 178; 13 Ann. 117; 5 La. 887; 6 Ann. 446.
¶79Again : “ It is undeniable that all the orders and proceedings taken out by Mrs. Galligar in the succession of Lewis A. Webb, including the order for the probate sale of 1870, were taken by her in her capacity of testamentary executrix of his last will. … In fact, as she was acting under the will, in administering the property of the estate, •she could act in no other capacity than testamentary executrix.”
¶80These admissions serve as a complete answer to the charge in plaintiffs’ petition that Amelia Keller was never qualified as testamentary executrix, and that all acts done by her in that capacity are null and void.
¶81VII.
¶82Having fully conceded, as indeed the record otherwise fully proves, that Amelia Keller administered the estate of Dr. Webb as testamentary executrix under his will, and as such procured the sale of the property, it follows as a necessary consequence that his acts as such are legal and valid to all the world, and cannot be assailed in a suit between other parties.
¶83We have the admission in plaintiffs’ brief to this effect, viz: “Besides, the capacity of an administrator, executor or other fiduciary, cannot be collaterally assailed,” etc.; citing authorities:
¶84In 32 Ann. 364, Estate of Altemus, the Court said : “ Mere illegality in the appointment of an administrator, will not vitiate the acts done under it. The acts of the officer in such case are valid, although he should have been illegally appointed.” Succession of Dugart, 30 Ann. 268; Bienvenu vs. Parker, 32-
¶85This principle applies with equal force to the appointment of Amelia Oeller as executrix and dative tutrix, and to the appointment of under tutor.
¶86VIII.
¶87The complaint made of the order of court directing the sale on the ground that the estate of Dr. Webb owed no debts, or, if it did, none that had been recognized and proved before the family meeting or the court, does not go to the court’s want of jurisdiction. The debts were subsequently placed upon a tableau and proved to the 'satisfaction of the judge, who was competent, and same was homologated; and he directed the proceeds of sale to be applied to their payment. This *67was a mere irregularity and not a cause to challenge the proceedings as null and void.
¶88IX.
¶89The objection urged that the property was not adjudicated to Amelia Keller for two-thirds of the appraisement made in 1861, is wholly untenable. This Court will take judicial cognizance of the fact that the civil war intervened between that date and the date at which the second inventory was made in 1869. The proof shows that a once valuable plantation was completely devastated and laid waste by the transit of the contending armies, and that the value of the property was greatly reduced; and consequently a new appraisement was quite necessary in order to effect the sale of January, 1870.
¶90It was the duty of the judge to cause the property to be estimated by experts before proceeding to the sale thereof, if it was such property as had remained unsold for more than one year after the appointment of the executrix. R. C. C. 1169, 1170; 33 Ann. 466, Succession of Hood.
¶91At an offering under these articles, the property was legally adjudicated at two-thirds of that last valuation.
¶92X.
¶93It is the well settled jurisprudence of this Court that the purchaser at a sale made under an order of the probate court, which is a judicial one, is not bound to look beyond the decree recognizing its necessity.
¶94“ He must look to the jurisdiction of the court, but the truth of the record, concerning matters within its jurisdiction, cannot be disputed.” 14 La. 146; 15 La. 182; 7 R. 66; 7 Ann. 468; 14 Ann. 154, 622; 26 Ann. 596, Webb vs. Keller; 29 Ann. 536, Frazier vs. Zylick; 31 Ann. 280, Heineman vs. Janney. “ The purchaser at a judicial sale of property of the succession is not bound to look further bade than the order of court directing the. sale.” 18 Ann. 485, Succession of Hebrard; 21 Ann. 505, Woods vs. Hilliard Lee; 11 R. 72; 16 La. 440; 34 Ann. 1004; Nesom vs. Weis.
¶95XI.
¶96Prescription of five years, R. C. C. 3543, provides: “ All informalities connected with, or growing out of any public sale made by any person authorized to sell at public auction, shall be prescribed against by those claiming under such sale, after the lapse of five years from the time of making it, whether against minors, married women or interdicted persons.” 28 Ann. 571, Routh vs. Citizens’ Bank; 29 Ann. *68536, Frazer vs. Zylick; 34 Ann. 209, Roberts vs. Zansler; 34 Ann. 594, Heirs of Miller vs. Ober et al.; 21 Ann. 585, Pascaud vs. Pourle; 10 Ann. 684, Calais vs. Seinéré; 3 Ann. 328, Vaughan vs. Christine; 32 Ann. 337, Porter vs. Hornsby; 32 Ann. 437, Miller vs. Miller; 33 Ann. 1043, Mulholland vs. Scott; 33 Ann. 673.
¶97We regard this plea as strictly applicable to all of the alleged nullities propounded as aiising out of proceedings antecedent to and resulting in the probate sale of January 5th, 1870.
¶98The views hereinabove expressed in regard to the various intricate and conflicting claims of the plaintiffs, and the disposition made of the plea of five years’ prescription renders a decision of the defendants’ other pleas unnecessary.
¶99Of the plea of prescription of ten years, urged by plaintiffs against the debt claimed by Amelia Keller against the estate of Dr. Weblu and of the plea of peremption of her tacit mortgage, it is sufficient to say that, no proscription run against her demand during the lifetime of her husband, and the tableau acknowledging it was tiled and homologated within less than ten years thereafter, and more than years elapsed thereafter before this suit was filed.
¶100There was no law requiring the inscription of her tacit mortgage until the 1st of January, 1870 — only four days prior to the sale.
¶101We think the judgment in favor of the plaintiffs and against the appellants was erroneous, and it is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered in the court below, it is ordered, adjudged and decreed that the judgment appealed from, in respect to the appellants, be annulled, avoided and reversed, and that all the demands of plaintiffs against them be rejected at their cost.
¶102Mr. Justice' Todd dissenting on the motion to dismiss the appeal, takes no part in opinion upon the merits. Mr. Justice Fenner recuses himself on the ground of relationship to one of the defendants in the suit.