¶1The opinion of the court was delivered by
¶2This was an action of intervention and third opposition by a widow in necessitous circumstances, to recover one thousand dollars out of the estate of her husband and father of her minor children, also to have decreed null a vendor’s privilege resting on the property on which she claims a privilege as just stated.
¶3There were two third oppositions filed, claiming preference over the proceeds of the property offered for sale by public auction m foreclosure proceedings.
¶4The second petition of intervention and third opposition was by one claiming a privilege as creditor of the succession of the deceased, being for funeral expenses and physician’s services rendered, it is alleged, during the last illness of the late owner of the property seized and sold.
¶5IVe take up for decision in the first place, the question growing out of the claims of the widow in necessitous circumstances from the alleged necessitous widow’s claim.
¶6The property on which privilege is claimed, was sold to the late Daniel Leibcnguth on the 1st of September, 1895, for three thousand five hundred dollars. Cash — one thousand dollars, and for the remainder, the vendee executed promissory notes, payable in one and two years, secured as to their payment by mortgage and vendor's privilege.
¶7The holder of these notes, some time afterward, borrowed money, and gave his own note and the notes just referred to as security for the amount.
¶8When the amount became due, the debtor desired an extension, which the creditor accorded.
¶9In order to obtain the extension, the debtor, i. the maker of the two notes secured by vendor’s privilege (the late husband of petitioner and third opponent), sold the property to the creditor, Spiro.
¶10The same day, the creditor sold back the property to Daniel Leibenguth, opponent’s late husband.
¶11The purchaser furnished his promissory note for the sum of two *154thousand three hundred and twenty dollars to the owner of vendor (which was the amount due him), and retained for its payment a mortgage and vendor’s privilege.
¶12In these deeds it is declared that an amount of cash was paid.
¶13There was no cash paid as shown by the testimony of witnesses, to the introduction of which no objection was offered.
¶14The creditor has not been paid.
¶15His vendors’ privilege remained and was not destroyed or affected by the change in the form of the obligation.
¶16One may consent to the substitution of new notes without thereby novating the debt.
¶17The first vendor’s privilege in favor of the creditors, continued in force.
¶18We gather from the testimony that it was never the intention of the parties concerned to novate; without such intention is made evident in some way, there can be no novation.
¶19A creditor who receives another note from his debtor in lieu of the old, does not thereby novate and extinguish the old debt.
¶20There was no agreement looking to novation; on the contrary, we infer from the testimony, that all parties concerned were willing that the vendor’s privilege should remain secured on the property.
¶21The new debt was given with the same security that the creditor previously had on the property. “The pre-existent obligation must be extinguished; if only modified, and any stipulation of the original obligation remains there is no novation.” Rosenda vs. Zabrizkie, 4 R. 493.
¶22We have seen that the debt remained, and the vendor’s privilege by which it was secured; although there were changes made in the contract in order to get the delay the creditor desired.
¶23We pass to the claim of Mrs. Euiz, interven or and third opponent, who also claims a preference on the proceeds of the sale of the property on the ground that she paid debts of the succession secured by privilege, first in rank, as they were amounts due for the physician’s services rendered to the deceased during the last illness and for the funeral.
¶24As to, the former, the testimony does not show that they were for the last illness.
¶25The receipted bill, in evidence, sets forth, that the services were-*155rendered to the family of the deceased and the testimony did not disclose that the receipt was not correct.
¶26Charges, not for the last illness, it follows, are not privileged.
¶27With reference to the funeral expenses: the next claim of third opponent.
¶28Natural obligation springs from equity, and conscience, and are obligations imposed by reasons of humanity and for the good of family.
¶29Erom that point, a natural obligation is placed upon the child to •. pay the funeral expenses for laying to rest his father and mother, who leaves no property.
¶30It follows, that the debt paid in this case can not be recovered against a third person who is a creditor of the succession, and that would he the effect if the amount were deducted from the proceeds on which the third opponent claims a privilege for funeral expenses paid' by her.
¶31Had it been paid by one, not an heir, it would be different.
¶32Paid, however, by an heir, no action lies to compel a creditor to refund the amount from the proceeds of a sale on which he had a vendor’s privilege.
¶33Natural obligation to pay an indebtedness of the succession excludes one from recovering the amount from the debt to a third person.
¶34Judgment affirmed.