After rejection of his wife’s demand to probate an allegedly “lost” statutory will in which the husband and the wife were legatees, the husband then sued for probate of the alleged lost will and was met with a “Motion for Judicial Estoppel”.

This motion, filed on the grounds that the husband was aware of his wife’s suit to probate the will and should have joined in, was sustained and the husband’s demands were rejected and he appeals.

The sustaining of the motion (plea or exception) of judicial estoppel was clearly wrong. Mitchell v. Bertolla, 340 So.2d 287 (La. 1976); Welch v. Crown Zellerbach Corporation, 359 So.2d 154 (La. 1978). None of the variations of the common law doctrine of res judicata may be engrafted upon our Civil Code authority, Arts. 2285-2287, 3556. See Welch, supra.

REVERSED at appellee’s cost and remanded.