
    No. 2248.
    Mary Ann Leatt v. Heirs of Benjamin Williams.
    Tiie plea of res judicata will be maintained wbore the evidence shows that the title to the property in controversy has been finally adjudicated upon in a suit between the same parties.
    To enable the second'husband to recover on behalf of his minor children, issue of the marriage, one thousand dollars irom the succession of the first husband, the evidence must show that the deceased wife was in-necessitous circumstances at the death of her first husband. The fact that her child by a second marriage is in necessitous circumstances, gives it no claim against the succession of her first husband.
    APPEAL from Eighth District Court, parish of Livingston, Ellis,- J.
    
      A. Derail, for plaintiff and appellee. H. Duncan, for defendant and appellant.
   Wyly, J.

The plaintiff enjoined the sale of certain property in the succession of Benjamin Williams, claiming to be the owner thereof.

The defendants denied the allegations of the petition, and alleged .that the ownership of the property claimed by the plaintiff was settled adversely to her by a judgment of this court, rendered in April, 1860, in the suit of the heirs of Benjamin Williams v. Mary Ann Hardy or Williams (the plaintiff herein), reported in 15 An. 286. They also pleaded the exception of res judicata, the matters in controversy being settled in said judgment; and they asked that the injunction be dissolved, with damages, and that the sale of the property be proceeded with.

The plaintiff having died, her second husband, Samuel Lcatt, as natural tutor of his minor child, appeared and amended the pleadings, claiming in behalf of his deceased wife, from the succession of Benjamin Williams, $1000, under the act of seventeenth of March, 1852.

The evidence in the record shows, beyond doubt, that the property in controversy was decided to belong to the succession of Benjamin Williams in a suit between the same parties, reported in 15 An. 236. The exception of res judicata was well taken.

As to the claim for $1000, we are of the opinion that the proof fails to establish the fact that Mary Ann Leatt, formerly the widow of Benjamin Williams, was in necessitous circumstances at the time of his death. That her child, by a second marriage, is in necessitous circumstances, gives it no claim against the succession of her first husband.

It is therefore ordered that the judgment of the court a qua be annulled, and it is ordered that there be judgment for the defendants, that the injunction be dissolved, and that plaintiff pay costs of both courts.  