
    91 So.2d 584
    Succession of Lillian Bell REYNOLDS.
    No. 42925.
    
      Nov. 5, 1956.
    Rehearing Denied Dee. 10, 1956.
    
      Thomas Barr, III, W. Blair Lancaster, Jr., and Clovis E. La Prairie, Richard A. Dowling, New Orleans, for plaintiff s-appellants.
    Charles E. Richards, John T. Cooper, New Orleans, for defendants-appellees.
   PONDER, Justice.

This is an appeal from a judgment maintaining exceptions of no right and no cause of action and a plea of res adjudicata. An appeal was also taken by the curator ad hoc (representing one of the absent heirs) to the judgment of the district court fixing his fee and taxing it as costs to be paid by Mrs. Edna Reynolds Reese and the Reynolds’ heirs who are joined in their claim with Mrs. Reese.

This controversy has been before this court on two prior occasions. See Succession of Reynolds, 224 La. 975, 71 So.2d 537 and Succession of Reynolds, 228 La. 640, 83 So.2d 885. In the first of these suits, five collateral heirs sought to have a probated olographic will declared a nullity on the ground that its date was uncertain in that the will was originally dated August 3, 1945, and the decedent had written, by superimposition, the numeral 8, over the numeral 5 of the year, without obliterating the numeral 5. This court held therein that the will was not invalid because of want of certainty of date. In the second suit, the allegation was made that the decision of this court (decided on February 15, 1954) held that the correct date of the will was August 3, 1945, that there were two wills bearing this date each having a revoking clause and hence it was contended that decedent died intestate. This court reiterated and reaffirmed the probate of the will and specifically held that the date of the will was August 3', 1948, hence the judgment sustaining the exception of no cause of action and dismissing plaintiffs’ suit was affirmed. On application for rehearing, plaintiffs alleged that the date of August 3, 1948 was a false, inexact and incorrect date, as evidenced by the fact that decedent was not in New Orleans on that date but was attending Temple University in Pennsylvania from June 28 until August 6, 1948. It was alleged that this evidence did not come to plaintiffs’ knowledge until November 17, 1955. Judgment was rendered on November 7, 1955. This application for rehearing was refused by this court on December 12, 1955.

On January 4, 1956, the Reynolds’ heirs instituted the present suit alleging that the date of August 3, 1948 at the top of page 1 of the probated will is a false, inexact and incorrect date and is, therefore, no date at all because decedent was attending Temple University in Pennsylvania from June 28, 1948, until August 6, 1948 and the probated will was locked in the safety deposit box of the defendant Frank B. Wood during that period and it was, therefore, physically impossible for the decedent to have dated the probated will “August 3, 1948”. Plaintiffs allege that there is another will dated August 3, 1945 and that both wills contain the clause “revoking all others” and if both bear the same date they make each other impossible of execution and the decedent, therefore, died intestate.

To this petition exceptions of no right of action, no cause of action and a plea of res adjudicata were filed and maintained by the district court and the plaintiffs and the curator have appealed.

It is contended by the defendants to the suit and the curator that the plea of res •adjudicata is well founded and should be maintained.

An exhaustive discussion of the plea of res adjudicata is to be found in the case of Quarles v. Lewis, 226 La. 76, 75 So.2d 14, wherein this court reviewed the jurisprudence on the subject. It was therein pointed out that under Article 2286 of the LSA-Civil Code the authority of the thing adjudged takes place only with respect to the object of the judgment.

In the present case the object of .the judgment in all of the -suits brought herein was to establish the invalidity or validity of the will in question. It is interesting to note that in the first and second suits brought by the Reynolds’ heirs they alleged that the will in question was uncertain- in date and this is the'same allegation in the present suit except that the reason for the “inexact” date is different, viz., that testatrix was not present in Louisiana at the time it was made (August 3, 1948).

In the case of Heirs of Hoover v. York, 35 La.Ann. 573, a suit was first brought by the heirs at law against the universal legatee to annul the will on numerous, grounds and, after the court adjudged the will to be valid, the heirs brought suit against the executors of the will praying, among other things, that the will be declared a nullity on substantially the same grounds. In upholding a plea of res adjudicata in the second suit, the court pointed out that in both suits it was demanded that the will be decreed a nullity and, although the grounds may be a little different (although substantially the same), it is the prayer of the petition in both suits that is controlling. It is stated therein, see page 577 of 35 La. Ann.:

“It is obvious that the rights of the parties, or their respective claims to be determined in both suits, were dependent solely upon the validity or invalidity of the will in question. That was the main issue in both cases. In the first suit by the heirs for the recovery of the estate, the court was not only competent to pass on this question of the validity vel non of the will, but was compelled to do so, in order to determine whether the estate should go to those seeking to recover it or remain in the possession of those holding, possessing and claiming it under the will. This all important issue, this pivotal question, the court of the highest resort did decide in the former suit. That judgment, whether it commends itself to our approval or not, was the judgment of a competent court having complete jurisdiction over the subject matter determined, and that judgment upon this issue was adverse to the plaintiffs in that case.”

In the case of Hollingshead v. Sturges, 16 La.Ann. 334, at page 335, it was said: “The object of probating a will is to procure its execution; and, when a judgment of homologation is obtained contradictorily with proper parties, the judgment as between them will bar a subsequent action in nullity.”

We note that in Succession of Pujol v. Manning, 221 La. 466, 59 So.2d 456, although the court refused to invalidate a will which was attacked as being a forgery on the ground that the decedent could not write, read nor sign his name on the date the i - strument was confected, in a per curiam written on application for rehearing it was pointed out that the parties may litigate in new proceedings under proper allegations the contention urged on application for rehearing that the testator did not have the testamentary capacity, since he could not understand the import of the words he had written. However, an examination of this decision gives no assurance that the new suit would not be met successfully with a plea of res adjudicata.

It is urged in the suit under consideration that the information upon which appellants are relying was available to them at the time the first suit was tried and evidence was there introduced to the effect that the testatrix was attending Temple University on August 3, 1948 and that, therefore, the present suit is without merit.

. It would be untenable to hold that a party could bring suit to invalidate a will on certain grounds then when unsuccessful institute another suit with the same object, viz., invalidity of the will, on other grounds, particularly when those grounds and the basis for same existed to the knowledge of the party at the time the first suit was brought. If it were not so it would be useless for a court to hold a will valid and order it probated if it were again subject to attack by the same parties.

We are not impressed with appellants’ argument that the information upon which they rely as the basis for their contention was not available to them previously. In the first suit it was contended by them that the will was dated in 1945 and evidence in support of that contention was introduced to show that the testatrix could not have dated it in 1948 because she was attending Temple University during that time in 1948. The test of res adjudicata, as set out in Article 2286, LSA-C.C., is met herein and we accordingly hold that the plea is good and was properly maintained by the district court.

The only other question for consideration is the payment of the curator’s fee. The district court taxed the fee of the curator, appointed to represent Frank J. Wood, as costs. The curator answered the appeal taken by the Reynolds’ heirs asking that his fee be taxed against the succession or in the alternative that the judgment in this respect be affirmed. The appellee, testamentary executor, contends that the appellants provoked the appointment of the curator ad hoc when all of the testimony in the record of the first suit proved conclusively that Frank J. Wood predeceased the testatrix and this was admitted by all parties and that, therefore, they should pay this fee as costs.

In a brief filed in this court, the curator cites the cases holding that the fees of the curator for absent parties should be taxed as costs and paid by the party procuring his appointment in the event same is not obtainable from the party whom he represents in his capacity as curator ad hoc. See Desoto Wholesale Grocery Co., Inc., v. Allen, La.App., 31 So.2d 245; Rosenthal v. Rosenthal, 159 La. 933, 106 So. 385; Gentile v. Plasencia, 10 La.Ann. 203; Bowie v. Davis, 33 La.Ann. 345.

The district court correctly taxed the fee of the curator as costs to be paid by the Reynolds’ heirs.

. For the reasons assigned, the judgment of the district court is affirmed at appellants’ cost.

HAMITER and SIMON, JJ., concur in the decree.

McCALEB, Justice

(concurring).

I agree that the plea of res judicata is well founded for not only is there an identity of demands and parties hut this suit is founded on the same cause of action as that set forth in the second suit. See Succession of Reynolds, 228 La. 640, 83 So.2d 885. As pointed out by the majority opinion, that suit, like this one, had for its obj ect the invalidity of the will dated August 3, 1948 on the basis that its correct date was August 3, 1945 and 'that, since there were two wills bearing that date, each having a revoking clause, the decedent died intestate. Thus, the cause of action there was for the nullity of the will on the ground that it had been revoked by another will bearing the same date. The identical cause of action is alleged in this suit, i.e., that the real date of the will is August 3, 1945 and that, therefore, it is null because it has been revoked by another will of the same date containing a revoking clause. The only change in the pleadings in this suit is that plaintiffs are now claiming that the Court was wrong in the first and second suits when it was decided that the date of the will was August 3, 1948, it now being contended that it was physically impossible for the testatrix to have dated the will August 3, 1948. Obviously, the cause of action is the same, the only difference being in the reason for the cause of action, plaintiff now offering to submit proof to show that our first and second judgments were wrong.

It is further stated in the main opinion that “It would be untenable to hold that a party could bring suit to invalidate a will on certain grounds then when unsuccessful institute another suit with the same object, viz., invalidity of the will, on other grounds, particularly when those grounds and the basis for same existed to the knowledge of the party at the time the first suit was brought”.

While I subscribe to this observation, I believe that it is apropos only in connection with the exception of no cause of action, which was also sustained below, as the failure to demand relief on a cause of action which could have been alleged does not bar, on the ground of res judicata, a second action for the same relief founded on that cause of action. See Quarles v. Lewis, 226 La. 76, 75 So.2d 14 and cases there cited. However, it was recognized in the Quarles case, in line with the decisions of Norton v. Crescent City Ice Mfg. Co., 178 La. 150, 150 So. 859 and P. Olivier & Sons v. Board of Com’rs, 181 La. 802, 160 So. 419, that such a second suit, while not barred by res judicata, would be amenable to an exception of no cause of action or one of judicial estoppel since the failure of the plaintiff to assert a known claim would be considered a waiver of that claim,

I respectfully concur.

FOURNET, Chief Justice

(concurring in part and dissenting in part).

This case is before us on appeal by the plaintiffs-appellants for the third time; the first time we held that the probated will was not invalid for want of certainty of date; the second time we affirmed the judgment of the lower court dismissing plaintiffs’ petition on the ground that it failed to state a cause of action; and the present appeal is from a judgment of the district court maintaining a plea of res judicata based on the former judgments of this Court, as well as exceptions of no cause and no right of action and dismissing plaintiffs’ third attack on the validity of the same will. The basis of the present suit is that the date of August 3, 1948, is a false date and therefore no date at all because it was a physical impossibility for the decedent to have changed the date on the so-called “probated will” at that time; that the said will therefore bears only one correct date, that of August 3, 1945; that in as much as the decedent left another will, known as Wood No. 3, and “The ‘probated will’ and ‘Wood 'No. 3’ being each dated August 3, 1945, it is impossible to tell which is the later of the two; and each contain the clause ‘revoking all others,’ [so that] they do make each other impossible of execution.”

I readily agree with the majority opinion that the cases are between the same parties and the object of the demand is the same, i.e., the nullity of the “probated will.” But the demand in each case is not founded on the same cause of action. The first attack, as stated in the opinion, is based “on the sole ground that its date is uncertain the second is based on the claim set out in footnote 2 herein, i.e., that our decree on the first appeal “ ‘definitely establishes the date of the “probated will” as August, 1945” and while all three petitions contain similar allegations, “that the probated will and Wood No. 3, being each dated August 3, 1945, it is impossible to tell which is the later of the two, and since each contain the clause ‘revoking all others’ they do make each other impossible of execution,” this third attack is based on the allegation that it was a physical impossibility for the decedent to have changed the date on the probated will to the date fixed by this Court on first appeal, and for cause allege that the testatrix was attending Temple University in Pennsylvania from June 28, 1948, until August 6, 1948, and the probated will was locked in the safety deposit box of the defendant Frank B. Wood during that period. Consequently, the cause of action presented in the suit now on appeal was neither tendered for decision in the former suits, nor adjudicated upon in the judgments that followed, and therefore is not a “thing adjudged” within the meaning of the LSA-Civil Code, Article 2286, our basic law on the subject, which reads as follows: “The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must he founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.” (Italics above, and those which follow, are mine.)

In the case of Hope v. Madison, 194 La. 337, 193 So. 666, the question put here was squarely before this Court for consideration and was decided contrary to the majority view herein. Counsel for the defendant there contended “that the issue [object] presented in the former and present suits is identical, i.e., the validity vel non of the deed from plaintiff to defendant; that plaintiff, having hut one cause of action, was compelled to urge all of her reasons or grounds supporting the same in her former suit; and that, having failed to include therein the ground presently urged, she is barred from recovering in the present action by the judgment in the former suit.” In disposing of that issue we pointed out that, as previously stated by this Court in State v. American Sugar Refining Company, 108 La. 603, 32 So. 965, “The law of res judicata is stated with great simplicity and precision by article 2286, Civ.Code, * * *. This formula was borrowed by ■our Code from the Code Napoleon (article 1351) ; by the Code Napoleon from Pothier, Obligations, No. 889; a nd by Pothier from the Roman jurisconsults. It brings out with great distinctness the salient feature of the law of res judicata, namely, the identity that must exist as to thing demanded, cause of action, and persons in the two suits. * * * And to the same effect are our own decisions. * * * Our court has never wavered, that we know of, in the rigid exaction of the three unities.” The opinion further observes that Dalloz, in his work Répertoire de Législation, vo. “Chose Jugée,” No. 103, declares that this is the unanimous sentiment of the courts and writers of France; and mentions that M. Planiol, one of the most eminent of the modern French commentators, treats the subject as follows in his work entitled Traité Elémentaire de Droit Civil: “To recognize in which case the exception of res judicata is applicable to a new demand, three conditions have long been established ; it is necessary 1. That the second suit be between the same parties, 2. That it be brought on the same object, and 3. That it have the same cause as the first. (Article 1351 [Code Napoleon]).” 
      
      . 224 La. 975, 71 So.2d 537. The ground of the attack that the date was uncertain was the fact that the will was originally dated, both at its beginning and conclusion, August 3, 1945, and the year date at the beginning only had been changed, admittedly by the testatrix, by imposition of an “8” over the “5”.
     
      
      . 228 La. 640, 83 So.2d 885, 886. After the finality of our decree holding that since the date of the will intended by the testatrix (August 3, 1948) was clearly and readily determinable, there was no uncertainty of date, and that the testatrix bad intended rather to change the effective date of the will, the plaintiffs’ second suit attacking the validity of the same will was filed, but based on the allegation that our former decree “ ‘definitely establishes the date of the “probated will” as August, 1945.’ ” The plaintiffs also alleged that decedent left another purported will, likewise dated August 3, 1945, identified as Wood No. 3; and “ ‘each having revoking clauses, they do revoke each other and all prior wills.’ ”
     
      
      . The decedent left other olographic wills bearing earlier dates.
     
      
      . In oui' opinion on that appeal, maintaining the exception of no cause of action, we pointed out: “That we did not initially declare the correct date of the probated will to be August 3, 1945, and that the construction now being placed by plaintiffs’ counsel on our former opinion is obviously an aforethought, are demonstrated by counsel’s own allegat'ons” on application to this Court for rehearing, and to the U. S. Supreme Court for writ of certiorari; observing “that although it may have been drawn originally in 1945 the testatrix intended to and did give her testament, by superimposition, the certain date of August 3, 1948.” 228 La. at page 648, 83 So.2d at page 887.
     
      
      . “The doctrine of the common law courts that res judicata includes not only everything pleaded in a cause, but even that which might have been pleaded, does not obtain generally under our system.” Woodcock v. Baldwin, 110 La. 270, 275, 34 So. 440, 441; see, also, Himel v. Connely, 195 La. 769, 197 So. 424, and Hope v. Madison, 194 La. 337, 193 So. 666.
     
      
      . As stated by this Court in the case of Quarles v. Lewis, 226 La. 76, 82, 75 So.2d 14, 16, “There are only three exceptions to this general rule that res adjudieata does not apply unless there he an identity of demands, parties and cause of action, as prescribed by Article 2286 of the Code. Those exceptions are succinctly stated in Himel v. Connely, supra, thus: ‘There are decisions recognizing three exceptions to the general rule which we have quoted, but the exceptions are not pertinent to this case. One of the exceptions that was made is that in a petitory action the parties to the suit must •assert whatever titles they have, and not hold back any claim for future litigation. Shaffer v. Scuddy, 14 La.Ann. 575; Brigot’s Heirs v. Brigot, 49 La. Ann. 1428, 22 So. 641; Howcott v. Pettit, 106 La. 530, 31 So. 61; Lindquist v. Maurepas Land & Lumber Co., 112 La. 1030, 36 So. 843; Gajan v. Patout & Burguieres, 135 La. 156, 65 So. 17; Succession of Whitner, 165 La. 769, 116 So. 180. Another exception to the general rule has been made in suits for a partition or division of real estate. Choppin v. Union National Bank, 47 La.Ann. 660, 17 So. 201; Wells v. Files, 136 La. 125, 66 So. 749; Samuels v. Parsons, 146 La. 262, 83 So. 548. And the third exception to the general rule has been made in suits for an injunction against the execution of a judgment, or of a writ of seizure and sale in executory process. McMicken v. Morgan, 9 La.Ann. 208; Trescott v. Lewis, 12 La.Ann. 197; Fluker v. Davis, 12 La.Ann. 613; Porter v. Morere, 30 La.Ann. 230; Brooks v. Magee, 126 La. 388, 52 So. 551; Schwartz v. Siekmann, 136 La. 177, 66 So. 770. But, in injunction suits, the right of the head of a family to claim the homestead exemption is not waived by his enjoining the sale on other grounds without claiming the homestead exemption. Lee v. Cooper, 155 La. 143, 98 So. 869. The present suit does not come within any of the exceptions to the general rule, that the doctrine of the common-law courts, that res judicata includes not only everything pleaded in a cause but even that which might have been pleaded, does not prevail in Louisiana.’ See also Hope v. Madison, supra.”
     