(110 So. 764)

No. 26850.

#### Succession of Mrs. Florence A. TOOMBS.

(Oct. 5, 1926.

Rehearing Denied Nov. 29, 1926.)

Appeal from First Judicial District Court. Parish of Caddo; E. P. Mills, Judge.

M. D. Dimitry, of Shreveport, for appellant legal heirs.

Edw, Barnett, of Shreveport, for appellant absent heirs.

Joseph H. Levy and Clifton F. Davis, both of Shreveport, for appellees.

ROGERS, J.

The facts of this case are fully set forth in the opinion handed down this day in Beattie et al. v. Dimitry et al., ante, p. 571, 110 So. 759, No. 27932 of our docket.

After Mrs. Marion Beattie, in pursuance of the compromise entered into with the heirs of Mrs. Toombs, had by notarial act formally renounced the succession and the office of testamentary executrix, and had purchased on terms of credit from the heirs all the real estate belonging to the succession, a judgment recognizing said heirs and. sending them into possession of the decedent’s estate was rendered and signed by the district court.

A few days subsequent to the execution of the instrument, Mrs. Beattie withdrew, in writing, her renunciation as testamentary executrix, declaring, in said document, “that she is the universal legatee under the will of the said Mrs. Florence A. Toombs and testamentary executrix of her succession.”

On an ex parte application to the court to withdraw her renunciation as testamentary executrix, she obtained an order permitting her to do so.

Thereafter,'Mrs. Beattie, as testamentary executrix, proceeded by rule against the heirs to have the judgment recognizing and sending them into possession set aside and annulled.

The defendants in rule filed numerous exceptions and pleas, all of which were overruled. On the merits, the ease was submitted mainly on the record, and resulted in a decree rescinding the judgment. Defendants in rule appealed, and, in due course, the transcript was lodged in this court.

Pending the appeal, Mrs. Marion Beattie died, and one Robert L. Beattie, alleging that he was her surviving husband, applied to be appointed dative testamentary executor of the succession of Mrs. Toombs. His application was granted, notwithstanding the opposition of the heirs. Opponents appealed from the order, and a supplemental transcript was filed in this court.

Our opinion and decree in the case of Beattie et al. v. Dimitry et al., hereinabove referred to, dispose of the issues set forth in the original and supplemental transcripts now before us for review. The rights, of the respective litigants are dependent upon the forgery vel non of the will of Mrs. Toombs. We have reached the conclusion that the will is a forgery and have so decreed. Since Mrs. Toombs died intestate, an order appointing Robert L. Beattie dative testamentary executor has no basis upon which to rest, and the legal heirs of the decedent are entitled to be recognized as such and sent into possession of her succession.

For the reasqns assigned, the judgments appealed from aré set aside, and it is now ordered that the application of Robert L. Beattie to be appointed dative testamentary executor of the succession of Mrs. Florence A. Toombs Jje and it is hereby denied; it is further orderéd *587that tlie judgment of the district court rendered and signed on May 3, 1924, recognizing and putting in possession the heirs at law of the decedent be and it is hereby reinstated on the records of the district court.

All costs of the proceedings to be paid by Robert L. Beattie, appellee.