
    Posey R. BOWERS, duly qualified testamentary executor of the Succession of Miss Amenaide Fassmann, et al., v. The ROMAN CATHOLIC CHURCH OF the DIOCESE OF NEW ORLEANS.
    No. 5009.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1972.
    Rehearing Denied July 5, 1972.
    Writ Refused Sept. 27, 1972.
    
      Jackson P. McNeely, New Orleans, for appellants.
    Otto B. Schoenfeld, Denechaud & Dene-chaud, New Orleans, for appellee.
    Before CHASEZ, REDMANN, and BAILES, JJ.
   CHASEZ, Judge.

This is a declaratory judgment suit instituted by plaintiffs against defendant, the Roman Catholic Church of the Archdiocese of New Orleans, formerly known as the Roman Catholic Church of the Diocese of New Orleans, to have the defendant adjudged as forfeiting certain legacies previously received from the Succession of Miss Amenaide Fassmann, docket No. 326-059 of the Civil District Court for the Parish of Orleans.

The suit was filed by Posey R. Bowers, testamentary executor of the Succession of Miss Amenaide Fassmann; Mrs. Lucille Lang Bowers, Mrs. Gertrude Fassmann, widow of Wallace M. Lear, named as residual legatees; Elmire Hancock Johns, daughter of a deceased residual legatee, and Mrs. Walker Hancock, Sr., legal heirs of the decedent.

Defendants in the lower court filed exceptions of improper venue and nonjoinder of necessary parties plaintiff, which were overruled by the trial judge. Defendant further filed peremptory exceptions of lib-erative prescription, no cause of action, no right of action and no interest in plaintiffs to institute suit, no cause and/or right of action, and non-joinder of indispensable parties. The trial court overruled all the exceptions save the exception of no cause of action which was sustained, dismissing plaintiffs’ suit. From this adverse judgment plaintiffs have appealed.

By a will dated September 26, 1953, Amenaide Fassmann gave and bequeathed:

“I give and bequeath unto the Roman Catholic Archdiocese of New Orleans, Louisiana, the property, square 44, Harlem, Jefferson Parish, Louisiana; to be used for the erection of a Church or Chapel in memory of my brother, EDWARD VICTOR FASSMANN. I also give and bequeath unto the Roman Catholic Archdiocese of Louisiana, the sum of ONE THOUSAND & NO/lOO ($1,-000.00) DOLLARS, cash, to be used for the foundation of the future Church or Chapel to be erected on square 44, Harlem, Jefferson Parish, Louisiana; this gift of ONE THOUSAND & NO/100 ($1,000.00) DOLLARS is in memory of my devoted sister, VIRGINIA FASSMANN, who was an heroic Catholic.”

Subsequently, after the demise of Miss Fassmann, Posey R. Bowers, as duly named and qualified testamentary executor in compliance with said disposition, under court order, transferred the subject property to the defendant on June 1, 1955.

Plaintiffs allege that from the time of transfer to the present no action has been taken by the defendants to erect a “church or chapel” and that by their inaction defendant has forfeited any right to the devise and legacy.

The lower court maintained the exception of no cause of action, dismissing plaintiffs’ suit, reasoning that the testator did not fix a time for the erection of a church or chapel and, therefore, there has been no failure by defendant to fulfill the condition.

In order to determine whether or not the exception is well founded we must first determine the import of the testatrix’s bequest.

In any interpretation of a last will the intention of the testator must be ascertained and once determined the same must be observed and honored providing the law so permits. LSA-C.C. Article 1712.

We are convinced that the testatrix in granting the devise clearly intended the land to be used for “the erection of a church or chapel”. The entire tenor of the paragraph concerning this particular legacy is indicative of securing the condition that the land be used by the legatee for the purpose, and only for the purpose, of constructing a church or chapel thereon. Significantly, we note the language used in granting the $1,000 legacy in that this money is “to be used for the foundation of the future church or chapel to be erected on square 44, Harlem, Jefferson Parish, Louisiana.” Accordingly, we are certain that the land would not have been so granted to the defendant had she known that no church or chapel was to be built on this land.

Defendant accepted the legacy under the condition imposed, as evidenced by the act of transfer dated June 1, 1955, wherein it is stated:

“THE ROMAN CATHOLIC CHURCH OF THE DIOCESE OF NEW ORLEANS, a Louisiana corporation, here present, acknowledging and accepting the said bequest, to-wit: Square 44, Harlem, Jefferson Parish, Louisiana, ‘ “to be used for the erection of a Church or Chapel in memory of Edward Victor Fassmann” ’, and acknowledging delivery and possession thereof, the following described property, made as a bequest in the said will of the said late Miss Amenaide Fassman, ‘ “to be used for the erection of a Church or Chapel in memory of Edward Victor Fassman”.’
“And the said ROMAN CATHOLIC CHURCH OF THE DIOCESE OF NEW ORLEANS, through its undersigned Officer, herein duly authorized, declared that it accepts the said legacies and to the uses and purposes thereof as stipulated in the said last will and testament of the deceased, and acknowledges delivery and possession of the said real property, * * * *.”

It is evident that as hereinbefore discussed that the property is subject to a specific condition, to wit: "the erection of a church or chapel” on the land devised. However, the Will does not disclose a specific term in which the condition is to be fulfilled.

Defendant contends that since no time for performance is designated there has been no forfeiture of the bequest. No cases have been cited to this court and we know of none which have determined the exact issue that is before us.

We are convinced that where a testator or testatrix has disposed of property-subject to a condition under which no specified time for performance can be ascertained, the condition must be fulfilled within a reasonable amount of time, subject to the circumstances surrounding the devise or bequest. As to what constitutes a reasonable time, each case must be decided on its own facts. As stated in 3 Aubry and Rau, Civil Law Translations, Droit Civil Francais, “of Testamentary Successions and Gratuitous Dispositions,” 3717 at page 465:

“It is the function of the judge to determine, in accordance with the intention of the testator, whether the condition has or has not been fulfilled, and especially where the testator has not fixed a time for its fulfillment, to determine whether it can be considered as having failed.”

Additionally in 96 C.J.S. Wills § 999 it is stated:

“Generally, where a time is specified for the performance of a condition in a will it must be performed within that time; but, if no time is fixed, performance must be had within a reasonable time.”

We are also convinced that the testatrix intended a reasonable term for the performance of the condition. If the condition is not performed in a reasonable time, then it never would have to be performed and the intention of the testatrix would be negated. We therefore find the exception of no cause of action inapplicable to the present suit.

Defendant also entered a plea of prescription, asserting that it was placed in possession of the legacy on June 1, 1955 and suit for revocation for nonperformance of conditions was not filed until August 27, 1970. We find prescription inapplicable to suits of the present nature. Prescription cannot begin to run until there has been nonperformance of the condition. Thus prescription cannot apply when a reasonable time is granted for the performance of a condition, especially in view of our determination that each case must be adjudicated on its own facts.

Defendant’s exceptions of no right of action, nonjoinder of indispensable parties, failure to join necessary parties, and improper venue are all based on the primary allegation that plaintiff, Posey R. Bowers, has no standing and is not the proper party plaintiff. Defendant asserts that the Succession of Amenaide Fassmann has been legally concluded and the functions of the executor, Bowers, have ceased and therefore he has no interest in the present suit. Also, not all the residuary and universal legatees were joined.

Bowers was the duly named and qualified Testamentary Executor of the Succession of Amenaide Fassmann. All the debts have been paid and the legatees have been put in possession as of 1957. However, Bowers has never sought to be discharged from his administrative office as succession representative, as provided for by LSA-C.C.P. Article 3391 et seq.

LSA-C.C. Article 1672 provides:

“Art. 1672 Duty of executor to see testament faithfully executed.
“Art. 1672. The testamentary executor is bound to see the testament faithfully executed. (As amended Acts 1960, No. 30, § 1.)”

A testament is not fully executed, however, until the conditions imposed on all legacies are complied with. We therefore find that Posey R. Bowers is a proper party to institute the present action and accordingly the Civil District Court for the Parish of Orleans is the court of proper venue by reason of the succession being judicially opened in that parish.

For the above and foregoing reasons the judgment of the lower court is reversed and the case remanded for trial on the merits. Costs to be paid by defendant-ap-pellee.

Reversed and remanded.

REDMANN, Judge

(concurring in part and dissenting in part).

In my view there are some differences in treatment of land and cash legacies.

The Legacy of Land

“An action to assert an interest in immovable property” (whether based on a contract claim, a donation inter vivos, or the rescission of a legacy), by dictate of C.C.P. art. 80 “shall be brought in the parish where the immovable property is situated”.

Assuming that the executor is the proper party plaintiff to revoke the legacy, the action is none the less one to assert an interest in the immovable.

Venue to revoke the immovable legacy is in Jefferson parish, to which this suit should be transferred, C.C.P. art. 932, and all other exceptions should there be tried.

The Legacy of Cash

Venue is proper, since defendant is domiciled in the parish where suit was filed; C.C.P. art. 42.

Prescription

The action for the “nullity or rescission of * * * testaments” is prescribed by five years; C.C. art. 3542 (emphasis added). Art. 1691, speaking of revocation by the testator, describes revocation as “particular when it falls on some of the dispositions only, without touching the rest.”

Art. 1567 provides “An action of revocation or rescission of a donation on account of the non-execution of the conditions imposed on the donee, is subject only to the usual prescription, which runs only from the day that the donee ceased to fulfill his obligations.” (Emphasis added.)

Assuming that both legacies here are interpreted as subject to resolutory conditions, I conclude from these articles that the prescriptive period for revocation or rescission is five years.

This period should run from the reasonable time by which the condition should be fulfilled.

On the one hand, as the majority observes, where no time for performance has been specified, the law ordinarily implies a reasonable time, C.C. art. 2050. It is conceivable that such factors as population concentration, availability of the great amount of money necessary, and a myriad of other considerations might support a conclusion that the reasonable period for beginning performance has not yet even occurred. (If so, defendant should win on the merits.)

On the other hand, if the charge was intended to be fulfilled forthwith (while testatrix’s brother’s and sister’s names might still be recognized by churchgoers), then the reasonable time (at least to begin) was a brief period, determinable by such factors as time to draw plans, etc. And in this case the alternative plea of prescription may be valid, since 15 years is at least five years since the passage of the reasonable time so construed.

Accordingly, while I disagree on the venue question as to the immovable legacy (and on the executor’s right of action and non-joinder), and while I might prefer to suggest a Supreme Court re-examination of Richardson and Manson, I feel obliged to concur in holding a cause of action stated, and I do concur that evidence on the question whether a reasonable time has passed is necessary both to determine whether the legacies should be revoked for failure to meet the conditions and (if so) whether plaintiff’s claims have prescribed. 
      
      . Other residual legatees are named under the will but were not joined as parties plaintiff or defendants.
     
      
      . It appears to me he is not. C.C.P. art. 681; Aubry & Rau, Testamentary Successions and Gratuitous Dispositions (La. Law Inst. trans. 1969), § 707a at p. 399 and § 727 at p. 522. The revoked legacy would belong to the residuary legatees, and whether or not they claim the legacy is none of the executor’s business. His job is to execute the testament, C.C. art. 1672. The residuary legatees are the proper plaintiffs, and all should be joined, C.C.P. arts. 641-644, irrespective of whether they are indispensable or necessary, since exception was filed, and whether or not they agree with plaintiffs’ position.
     
      
      . Profound questions of fundamental immovable property law (see C.C. arts., e. g., 483, 490, 491, 456; also Yiannopoulos, Civil Law of Property, § 114 at pp. 345-346) besides those of testamentary interpretation (see Aubry & Rau, op. cit. § 727 at pp. 522-523), persist despite cases (difficult to completely distinguish) like Board of Trustees of Columbia Road Methodist Episcopal Church of Bogalusa v. Richardson, 216 La. 633, 44 So.2d 321 (1949) and Orleans P. Sch. Bd. v. Manson, 241 La. 1029, 132 So.2d 885 (1961), in both of which inter vivos land gifts were treated as revocable. Conceivably Cy-Pres, R.S. 9:2331, could be involved.
     
      
      .The possible conflict between arts. 3542 and 2221 (establishing a ten year prescription) is not pertinent since art. 2221 relates only to “agreements”, while art. 3542 relates to both agreements and testaments.
     
      
      . See Manson, supra n. 2, 132 So.2d at 889, n. 2; also see Louisiana note following n. 20 in Aubry & Rau, § 707a, p. 401.
     
      
      . Perhaps steps towards fulfillment might interrupt this prescription, or even defeat the action for rescission; see Planiol, Civil Law Treatise (La.Law Inst. trans. 1959), III, § 2634.
     