behalf of plaintiff and another daughter of testator and another son, and another portion was given in trust to defendant to hold for the benefit of another son, his widow, and issue on substantially the same terms. We are not called upon to interpret the rather intricate provisions of this will; but from what has been said with reference thereto it is apparent that four of the children of testator were to take the rents of specific portions of testator's real property for life, and that fee-simple title was to vest in their issue at the expiration of twenty years from the death of each child, respectively, or, in the event of no issue surviving at that time, the title was to go by descent to the other children of testator or their issue, and that defendant, as trustee, and his successors were to hold one portion for another son.

Under these circumstances, the children of the testator conceived the idea that they should prefer to take fee-simple title to their father's property by descent rather than the life interest given to them, respectively, with remainders over to vest in their issue after the lapse of twenty years from the time they should die. And accordingly they agreed, as defendant alleged, to join with him in contesting the probate of their father's will on the ground that he was not of sufficient testamentary capacity, and each of the four others agreed to pay him two thousand dollars in the event that the contest of the will should be successful, and each should acquire his share in the father's estate by descent. It is evident that this arrangement was intended to cut off any vested interest in the issue of these five children, and to prevent the defendant 589 from becoming trustee for the son whose share was left to him in trust. Defendant, being named as executor in a codicil to the will, was to receive the amounts agreed to be paid to him in lieu of the compensation which he would be entitled to as executor and trustee if the provisions of the will should be carried out.

It appears that, in pursuance of this mutual agreement among the heirs of the father of plaintiff and defendant, the probate of their father's will was successfully contested, and the court refused to admit it to probate on the ground of want of mental capacity of the testator. In the proceeding. for the probate of the will in which the contest was made, as already indicated, there was no appearance of parties asking to have the will admitted to probate, save by a guardian of the heirs of one son, then deceased, who admitted in behalf of said minors the execution of the will, but denied the allegations of the contestants. The order denying the probate

of the will recites that all of the parties in interest named in said will and all heirs at law of the testator having had due and timely notice of the proceedings and being present in court in person or by counsel, and the court, having heard the evidence, finds that said instrument is not the last will and testament of the testator, and sets it aside and holds it for naught. The contention of plaintiff in the lower court was that the contract between the heirs of her father, under which, assuming it to have been made, which she denied, she undertook to pay two thousand dollars to the defendant in the event that the will should be set aside, was void as against public policy. This contention was sustained by the trial court, and we believe that its conclusion was undoubtedly correct. The plain and avowed purpose of the agreement was to defeat the interest of the issue of these parties who were by express provisions of the will made beneficiaries thereunder. By the adjudication that the will was not valid. for want of testamentary capacity the issue of these parties, then born or to be born, during their lives or within twenty years thereafter, 590 were to be absolutely defeated. an agreement cannot be sustained.

Such

An agreement among all the beneficiaries of a will for different distribution of the testator's property than that provided for in the will may be sustained if the interests devised under the will are fully vested: In re Garcelon's Estate, 101 Cal. 570, 43 Am. St. Rep. 134, 38 Pac. 414, 32 L. R. A. 595. But an agreement to resist the probate of a will and procure it to be set aside so as to cut off the interest of one who is not a party to such agreement is against public policy: Gray v. McReynolds, 65 Iowa, 461, 54 Am. Rep. 16, 21 N. W. 777. In this case it was said that such a contract was against public policy as tending to thwart justice, and that no recovery could be had under such a contract as between the parties thereto. For similar reasons, it has been held that an agreement among children to thwart a disposition which the parent may afterward make of his property is invalid: Mercier v. Mercier, 50 Ga. 546, 15 Am. Rep. 694. The alleged agreement on which defendant seeks to recover was void on other grounds of public policy. It contemplated the abandonment by defendant of a trust and the defeating of such trust without regard to the interests of those for whom he was appointed to act as trustee, and it was also in violation of the trust reposed in him by his father in naming him as an executor to carry out the provisions of the will. Defendant had not, it is true, assumed any obligations

as executor or trustee, for the will had not been admitted to probate, but we believe it was in violation of public policy that he should speculate on the advantages which would accrue to him as executor and trustee, should the will be admitted to probate, and make the relinquishment of those advantages the consideration for an agreement to secure a pecuniary consideration: Staunton v. Parker, 19 Hun (N. Y.), 55; Adams v. Outhouse, 45 N. Y. 318; Forsyth v. Woods, 11 Wall. (U. S.) 484, 20 L. ed. 207; Bowers v. Bowers, 26 Pa. 74, 67 Am. Dec. 398; Danielwitz 591 v. Sheppard, 62 Cal. 339. Any contract which involves a fraud on the rights of others is against public policy: Ray v. Mackin, 100 Ill. 246.

It seems to us, also, that the contract was void as a species of champerty or maintenance, for the defendant was to have a specific consideration for securing a specific result in a legal proceeding, not as an attorney rendering services herein, but as one who might or might not, as he saw fit, assist in sustaining the proceeding by giving or procuring testimony therein Greenhood on Public Policy, 394; 6 Cyc. 850. Even an attorney is not allowed to have a specific pecuniary interest in the result of a litigation by agreeing to pay the judgment rendered or contracting to have the benefit of a judgment which he may secure: Adye v. Hanna, 47 Iowa, 264, 29 Am. Rep. 484; Donaldson v. Eaton, 136 Iowa, 650, 125 Am. St. Rep. 275, 114 N. W. 19, 14 L. R. A., N. S., 1168. The purpose of the contract being against public policy, the whole contract is void, and no relief can be had thereunder, although the contract itself has been fully executed: Kirkpatrick v. Clark, 132 Ill. 342, 22 Am. St. Rep. 531, 24 N. E. 71, 8 L. R. A. 511; Hazelton v. Sheckels, 202 U. S. 71, 26 Sup. Ct. Rep. 567, 50 L. ed. 939.

The judgment is affirmed.

An Agreement Between the Father and Grandfather of an Infant Legatee, on one side, and an heir at law, not a legatee, on the other, that the latter should resist and the former should not insist on probate, and if the will should be set aside the heir should pay the infant the amount of his legacy, the object being to defeat a residuary legatee, is held void in Gray v. McReynolds, 65 Iowa, 461, 54 Am. Rep. 16. And in Mercier v. Mercier, 50 Ga. 546, 15 Am. Rep. 694, where the defendant, desiring to marry against the wish of his father, and being threatened with disinherison, entered into a verbal agreement with the plaintiff, his sister, that in case the father should will his entire property to either, that one would divide with the cther, and the entire property was afterward willed to defendant, it was decided that the agreement was against public policy, and that a bill for specific performance would not lie. An agreement not to make a will is held enforceable in Jones v. Abbott, 228 Ill. 34, 119 Am. St. Rep. 412.

CASES

IN THE

SUPREME COURT

OF

LOUISIANA.

MOUNT v. TREMONT LUMBER COMPANY.
[121 La. 64, 46 South. 103.]

NEGLIGENCE-Death by Wrongful Act-Adopted Child.-A right granted by statute to a surviving father or mother to recover damages for the death of their child caused by wrongful act is a right granted to the actual father or mother of such child, and not a right granted to an adopting parent. (p. 313.)

Price, Roberts & Warren for the appellant.

Stubbs, Russell & Theus, for the appellee.

65 NICHOLLS, J. Plaintiff appeals from the judgment of the district court sustaining an exception of no cause of action. Plaintiff and her husband brought this suit to recover damages for the death of their adopted son, alleging that his death resulted from the fault of the defendant company, in whose employment he was at the time of his death. The husband died after the institution of the suit, leaving the wife as the sole plaintiff.

In the brief filed in her behalf, her counsel says: "The sole question presented by the appeal is the right of the adopting parent to sue and recover damages for the death of her adopted son by wrongful act: Rev. Civ. Code, art. 2315.

.. Does the language of article 2315, to wit, ‘The right of this action shall survive in case of death in favor of . . . . the surviving father or mother. . . . . The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child'-confer any rights upon the parents by adoption? Was he the child, and is she the mother, within the meaning of the statute?" Vidal v. Commagere, 13 La. Ann. 516; Succession of Hosser, 37 La. Ann.

839; Succession of Haley, 49 La. Ann. 709, 22 South. 251; Cunningham v. Lawson, 111 La. 1024, 36 South. 107; Rev. Civ Code, art. 214.

Defendant contends that article 2315 of the Civil Code, as amended, must be strictly construed, and the exceptional right of action granted therein should be restricted to the classes of persons specially designated as beneficiaries. All classes not included are excluded: Vaughan v. Dalton-Lard Lumber Co., 119 La. 61, 43 South. 926; Lynch v. Knoop, 118 La. 611, 118 Am. St. Rep. 391, 43 South. 252, 8 L. R. A., N. S., 480; Walker v. Vicksburg, S. & P. R. R. Co., 110 La. 718, 34 South. 749.

2. That an adopted child does not have all the rights of a legitimate child, and adoption confers no benefit on the adoptant: Rev. Civ. Code, art. 214; Succession of Unforsake, 48 La. Ann. 546, 19 South. 602; In re Brown, 120 La. 50, 44 South. 919.

The question submitted to us is not res nova. The ruling of the district court was 66 correct, and based upon the decisions of this court on the subject. We see no reason for departing from them.

The judgment appealed from is hereby affirmed.

The Right of an Adopting Parent to inherit from the adopted child is discussed in the note to Van Derlyn v. Mack, 109 Am. St. Rep. 676. Actions for the Wrongful Death of a Human Being are considered in the note to Brown v. Electric Ry. Co., 70 Am. St. Rep. 669. As to whether the stepfather of a child may maintain an action for its death, see Hennessy v. Bavarian Brewing Co., 145 Mo. 104, 68 Am. St. Rep. 554; Marshall v. Macon Sash etc. Co., 103 Ga. 725, 68 Am. St. Rep. 140; and as to whether the mother of an illegitimate child may bring an action for its death, see Lynch v. Knoop, 118 La. 611, 118 Am. St. Rep. 391; McDonald v. Southern Ry., 71 S. C. 352, 110 Am. St. Rep. 576.

NATIONAL FIRE INSURANCE COMPANY v. BOARD OF ASSESSORS.

[121 La. 108, 46 South. 117.]

TAXATION-Situs of Credits for.-Debts due on an open account to a nonresident are taxable at the domicile of the debtor, if they arise out of a business carried on in the state levying the tax and form part of the capital of such business. (p. 319.)

Parkerson, Bruenn & Breazeale, for the appellant.

F. C. Zacharie, H. P. Sneed, G. H. Terriberry, and H. G. Dupre, assistant city attorney, for the appellees.