
    Cyprien Roy et al. v. Estibene Latiolas et al.
    Where the testator wills property to one for his life, directing that in case the legatfee should die without heirs, the property should return to a third person designated, the legacy is a prohibited substitution and void.
    Property willed to A. for life, and after her death to go to her children, living at the opening of the will, it will be considered that A. has an usufruct for life, and that the naked title to the property vested in the children.
    APPEAL from the Parish of St. Martin, Voorhies, J.
    
      Albert Voorhies, for plaintiffs,
    contended : The plaintiffs demand the nullity of the last will of Marie F. Roy, deceased, upon the ground that the only two dispositions it contains are substitutions prohibited by law. The first clause bequeaths to Alex. Roy, for his lifetime, a certain sum of money, the testatrix desiring, that in case he dies without heirs, the legacy shall return to Pierre Roy. The second devises land and slaves to J. Roy, for her lifetime, and after her death to L. C. Guidry.
    
    Whether the legacy to Alex. Roy, for his lifetime be considered as an usufruct for life, gr a donation in ownership, limited only as to its duration, is immaterial. For, in both suppositions, this legatee’s right is coupled with the charge of preserving the legacy for, and returning it to Pierre Roy, in proper time. Had the latter’s right vested immediately after testatrix’s death, and not been made to depend upon the contingency of Alex. Roy's death without heirs, the case might, perhaps, fall under the exception mentioned in- art. 1509 C. C. It is well settled, that where a legacy is made to one in usufruct, and to another in property, the naked property must vest immediately in the second 'donee. Rachel v. Rachel, 1 R. R. 115. Ducloslange v. Ross, 3d Ann. 433. In the present case, how can Pierre Roy's right be said to vest in him immediately, since it depends upon the contingency of Alex. Roy's death without heirs, and may never vest.
    On the other hand, it is contended, that this clause must be interpreted as giving for ever and in full, ownership to Alex. Roy, the legacy under consideration, with- the wish expressed by testatrix, that he may be pleased, when he shall have died without heirs, to make a present of it to P. Roy. This more than ingenious interpretation of a clause, free from doubt and ambiguity, is introduced here for the purpose of proving that there being but “ un simple désir," addressed by testatrix to A. Roy. This latter’s right is not coupled with the charge of preserving it for, and returning it to P. Roy at the given time; in other words, that this is no substitution.
    If Alex. Roy's interest be limited to his lifetime, the testatrix cannot be said to express “un simple désir” that he should, when he Will have died without heirs, and when his interest is expired, transfer to another what has ceased to be his. To get over this difficulty is a sine qua non; the ownership forever must be fixed in Alex. Roy. Clear unequivocal words must submit to interpretation.
    It is confidently asked, Why should the testatrix make a legacy to Alex. Roy for his lifetime, and then give the residue to Pierre Roy, only in case the former dies without heirs ? Do not these words denote her intention of giving the legacy to the former and his heirs ? In answer : Suppose the testatrix had made the legacy to P. Roy, simply to take effect after Alex. Roy's death ; it must be conceded,- according to the argument of the defence, that Alex. Roy's interest is at most a life estate. Does the fact that a contingency is introduced to the taking effect of P. Roy's right benefit Alex. Roy or his heirs in the least? Is a greater right given him, or are his heirs entitled to claim the legacy ? That the testatrix has left Undisposed of the residue bequeathed to P. Roy, were A. Roy to die and leave heirs, is not astonishing. It is a forgetfulness that can be easily imagined in a testatrix dictating her last wishes when stretched upon her death-bed. But this forgetfulness of hers, and the fact she has used the words, “au cas qu’il meure sans héritiers,” do not authorize the conclusion, that the words “je donne et légue á A. Roy, pour sa vie durante,” taken in connexion with the former sentence, mean a donation to him and his heirs. Upon the supposition she did mean a donation to him and his heirs, the defence is not benefitted. For, if the heirs inherit under the will, it cannot change A. Roy’s life estate. They must be the living heirs only; for, if not, the gift would be to persons unborn, in whom it could not vest immediately. If made to the living heirs, the “simple désir" (if addressed at all,) would be to them. They would be requested to dispose of the legacy, before their right would spring in existence; for, it is only in case A. Roy dies before them, that they take the legacy, the said legacy belonging to Pierre Roy if A. Roy dies without heirs. Taking this clause as it is, without shaping its meaning so as to suit the convenience or fancy of the defence, it is a clear donation of property to A.> Roy, for his lifetime, with a contingent remainder for P. Roy. Now, as to that part of the clause “je désire que cette somme retourne á P. Roy." Do these words contain a legacy ? The following questions may be given in answer: Is there any particular expression, any set of words, necessary to be used by a testator in order that his last wishes be of binding effect ? Does not the clear, unequivocal desire expressed by the testator, that his property shall belong to some one, amount to an actual disposition of it ? Must his intentions be couched in the language of command ? Marie F. Roy has bequeathed to Pierre Roy, by her last will, a residuary interest in the legacy to A. Roy, dependent upon the latter’s death without heirs. She has expressed her desire that he should have it in due course of time. It is not “un simple désir,” that A. Roy may be pleased, after his own death, without heirs, to make a present of it to P. Roy; but, she desires, that when the former’s interest is expired, the latter shall take the legacy, upon the fulfillment of the suspensive condition.
    
      In answer to all the French authorities quoted, besides denying their applicability to the present case, we will merely refer the court to the decision, (Ducloslange v. Ross, 2d Ann. 432,) that they cannot be used in this instance, they being totally at variance upon this subject with our jurisprudence. In a few words, this is a legacy to A. Roy, for his lifetime, with a contingent remainder to P. 'Roy. The bequest to the latter being of binding effect, whether the heirs of A. Roy come under the will, or whether the latter be considered as the absolute owner, is immaterial. For, in both cases, there exists the charge to preserve it for, and return it to P. Roy in due time. 4 L. R. 504. 3 M. R. 485. 1 L. R. 153. Poydras v. Poydras, Interpretation of Wills.
    2. This clause devises land and slaves to J. Roy, for her lifetime, and after her death, to L. O. Guidry. The ownership is given to both, but they enjoy it separately, “ordine successivo.” The same terms, “ Je donne et légue,” are used to convey the gift to both parties: “ Je donne et légue it J. Roy, pour sa vie durante, et aprés sa mort á Guidry.” “Je donne et légue a J. Roy, pour sa vie durante;” and “(Je donne et legue,) aprés la mort de Jl Roy, á L. C. Guidry.” Guidry takes the legacy after the death of Josetie Roy; he must, therefore, survive her, in order that the legacy may vest in him. There being nothing to prevent him from surviving her, she is, therefore, bound to preserve the property for him, in order to return it to him in due course of time.
    Were the expressions used in this clause susceptible of conveying the slightest ambiguity or equivocation, and were it not that they cany with them, not only the substance, but the garb and semblance of a substitution, it might be insisted, that because a person is never presumed to intend a violation of law — this clause should be interpreted as giving the usufruct to J. Roy, and at^the same time, the naked property to Guidry. But, how get over the words “je donne et légue A J. Roy, pour sa vie durante, et (je donne et légue) aprés sa mort á L. C. Guidry ? How can the terms “ je donne et légue aprés la mort de J. Roy,” convey the naked property to Guidry, before the former’s death, immediately after the testatrix?”
    Can clear unequivocal words be divested of their meaning, and a meaning totally at variance be wrung from them, in order to make a legal disposition of property from words containing an illegal one? To conclude, rights of the same nature, are conveyed to Roy and Guidry. The time when these interests spring in existence, and are at an end is fixed. The ownership has vested in J. Roy, to last as long as she lives. She has a right to use it as her own as long as she lives, but not alienate it, since her right (grévé de substitution,) is coupled with the charge of preserving it for, and returning it to Guidry, in whom the ownership will vest “ aprés sa mort,” after Josetie Roy’s death. In a word, they are both entitled to the legacy, but “ ordine successivo,” the true characteristic of a substitution. 5 Toullier, liv. 3, tit. 2, § 24. Merlin’s Rep. verbo Sub. Fid. § 56. Poydras v. Poydras, 1 L. R. 153.
    
      E. Simon, for defendants,
    contended: The plaintiffs pray in their petition, that the will of their sister, Marie Fanny Roy, be declared null and Void, on the ground that the only two dispositions therein written contain substitutions in favor of the persons therein named.
    1. It seems, the judge a quo, in the reasons he gives for annulling the will under consideration, took at once for granted, that the legatee, under the first disposition, is civilly and legally bound and obligated by the terms of the will to.’preserve the sum of money bequeathed, in order that after his death it may be transmitted to his heirs; and, in case of his dying without heirs, it may be transmitted to Pierre S. Roy. I say no; he is under no such legal or civil obligation; and nothing in the will would entitle Pierre'S. Roy to claim it in a court of justice. This is the whole question.
    • I shall premise, that on the subject of substitutions and the manner in which they are to be established, the two laws — the law of France, and art. 1507 of our code — are the same, and I shall proceed to demonstrate, that under our jurisprudence, as well as under that of France, the disposition under consideration, contains no substitution. The testatrix, after making the legacy to Alexander Roy, goes on to say : “ Et en cas de mort sans héritiers, je désire que cette somme retourne A Pierre Solastie Roy, mon frére.” That must mean, that the legacy made to Alexandre, being absolute, is to go naturally to his heirs, in the ordinary course of succession, but that in case of his dying without heirs, she wishes the amount to return, that is to say, to be given to her brother Pierre. She merely expresses her desire, and nothing else; she does not command; she does not impose any civil obligation on her legatee; and how can it be contended, that it carries with it the obligation to keep and preserve the amount bequeathed, so as to pay it over after his death to the person named in the will? How can it be said that “the donee is bound by the terms of the will to preserve the property in order to transmit it to. others ?” The will, by inference, no more than by its terms, expresses no such thing; and all it may amount to is, that she wishes the legatee, in case he dies without heirs, who would be entitled to inherit from him, to give the amount to, of to dispose of it in favor of Pierre Roy. No system of laws can ever give to the words “je désire ” the same effect as to an obligation imposed by a testator upon his legatee; and under no laws will the mere wish of a donor, be considered as a positive and binding obligation to comply with it. The principle quoted by the judge a quo, from the case of Duplessis v. Kennedy et al., 6 L. R. 245, to wit: “that it is of the essence of a substitution, that the original donee should be bound by the terms of the donation to preserve the property given for, and to transmit it to another person or class of persons, .&c.,” is .certainly correct; far from being disposed to controvert it, I rely upon it to show, that its application to -the present question would clearly warrant .the conclusion that our legacy contains no substitution, and that no legal obligation could derive from it in favor of Pierre Roy.
    
    Under the Roman laws, fidei commissa and substitutions were permitted to be established, and even inferred from mere conjectures ; by the jurisprudence of France, and particularly since the code, a contrary and safer rule was adopted. See Toullier, vol. 5, Nos. 25, 26 and 27. In No. 27 he says: “ En un mot, le code caractérise les substitutions prohibées par la charge expresse de conserver et de rendre k un tiers. II faut done que cette charge soit exprimée dans la disposition, ou qu’elle en résulte par -une conséquence nécessaire, &c.,” and he agrees with a decision of the court of Brussels, subsequently affirmed by the court of cassation, who held that the expressions “je prie mon héritier de rendre mes biens á un tel, ne sont plus aujourd’hui suffisantes pour caractériser une substitution prohibée., parce que, n’étant point eonjjues en termes impératifs, elles ne conférent aucun droit á. celui á qui l’héritier est prié de rendre.” So it is with all the expressions used in the Roman law: Rogo, depreeor, cupio, desidero, &c. See also Duranton, vol. 8, nos. 65, 71 and 72. Dalloz, vol. 12, verbo Substitutions, sec. 1, art. 5, § 3, says : “ la cour supréme á décidé que la priére de conserver et de rendre n’emportait plus essentiellement fidei commis obligatoire, et par conséquent ne tombait pas sous la prohibition de Particle 896.” Here, it is not even a prayer; it is not a request; it is a mere desire that the amount bequeathed, should return to Pierre Roy, and that the legatee, in the event of his dying without heirs, should dispose of it (by his will, perhaps,) in favor of her other brother. Surely, your honors will not deem the expressions used by the testatrix as amounting to an absolute command.
    2. I contend, that this second disposition means nothing more than a bequest of the usufruct to Joselle Roy, and the legacy of the naked property to Louis C. Guidry ; and that it is fully warranted by the article 1509 of our code. Indeed, it would be difficult to construe it differently, and it must seem a strange reasoning, when the judge says, in the way of illustrating his idea, “the property does not vest in Guidry, except on the happening of a contingency, the death of his mother, who is charged to preserve the same for him, and which contingency might never happen, as it is not unusual for children to die before their parents.” Such contingency exists in every case of usufruct and naked ownership; the owner of the property may die before the usufructuary; but that is no reason why the latter should not continue to enjoy his usufruct until the expiration of the time allowed by the deed, in order that it be then delivered to the owner if he be alive, or to his heirs if he be dead. As to the obligation of keeping and preserving the property for Guidry: this is the principal obligation of the usufructuaiy; he is bound to do so under article 560 of our code, which says : “ It is the duty of the usufructuary to keep the things of which he has the usufruct, and to take the same care of them as a prudent owner does of what belongs to him.”
    But I deny, that in this case the disposition can be so construed as to make it a substitution; because, forsooth, the legatee of the usufruct is bound to preserve the things bequeated for the legatee of the naked property. Now, what are the expressions used by the testatrix? “ Je donne et légue & Joselle Roy, veuve de feu Louis Guidry fils, ma sceur, ma mulatresse, &c &c., pour sa vie durante et aprés sa mort á son fils Louis Cyprien Guidry.” Do they mean anything else but this: that Josette Roy shall have the enjoyment of the property bequeathed “pour sa vie durante,” and that after her death it shall be delivered to her son. The owner is her son, and it is natural that the usufruct should be given to the mother during her whole life, and that the child should only take the property after her death. There is a principle well settled in our jurisprudence, which I presume this honorable court will consider a safe one in matters of substitutions; it is this: that in cases of doubt, it should always be presumed that the testator intended to do that which was lawful, rather than that which was prohibited by law. So in the case of Cole v. Cole's Executors, 7 N. S. 416, the late Supreme Court said: “Such is the respect paid to the wishes of the owner, that we believe it may be safely stated to be the spirit of the jurisprudence of every civilized country to carry into effect his will, unless it clearly violates the prohibition which the Legislature has established.” In the case of Arnaud v. Tarbe et al., 4 L. R. 504, the same principle was again recognized in the maxim that substitutions and fidei commissa are never presumed; they must be expressed, or result clearly from the sense and signification of the words in the instruments which contain them;” and in the case of Ducloslange, 4 R. R. 409, a case very similar to the present one, it was held, that “unless a clause in a will necessarily presents a substitution, and can be understood in no other manner, it will be sustained.” Such is the jurisprudence of France: Toullier, vol. 5, No. 44, says: “L’esprit général de laloi, celui de la jurisprudence des cours royales et de la cour de cassation, est de n’annuler une disposition faite depuis le code, qu’autant qu’elle présente nécessairement une substitution, et qu’elle ne peut étre soutenue ni interpi’étée d’aucune autre maniere.” See also Nos. 46 and 47. Duranton, vol. 8, No. 5, expresses the opinion, that “Toutes les fois que de 1’ensemble d’une disposition, il resultera que, tout en déclarant donner tel objet á une premiére personne dénommée, pour en jouir pendant savie et rendre la chose it sa mort á une autre personne, le donateur ou testateur n’aura néanmoins entendu donner á la premiere que la simple jouissance et non la propriété, qu’on pourra le supposer sans faire violence aux termes de l’acte, on devra voir, dans cette disposition, le simple don de l’usufruit fait á l’un, et de la nue propriété fait k l’autre.” Here again, the expressions of the testatrix are, that she gives the properly to Josette Roy “pour sa vie durante,” from which it seems to clearly result, that she only intended to give her the usufruct of the said property during her life; and surely such a clause does not necessarily present a substitution, nor can it be said that it can be understood in no other manner.
    Since my arrival at Opelousas, I have had occasion to refer to the case reported in 3d Ann. 432, and, as I thought, found that the difference that is thereon declared to exist between the two codes, only applied to fidei commissa, which are not prohibited in France, and which are absolutely forbidden by our code. But the court says nothing as to substitutions, which are equally prohibited by the! two codes; and the clauses of the will attacked in this suit are so attacked as being substitutions and not fidei commissa. I say again, that, as to substitutions, the two laws are the same, and that we may fairly avail ourselves of the benefit of the lights which we can obtain from the authors and commentators who have written upon the subject. The judge a quo seems to make no distinction between a substitution and a fidei commissum, otherwise he would not have made to this case the application of what the court said, in the case of Ducloslange v. Ross; yet it is quite different, and the different provisions of law upon the two subjects prove them to be so. Again, it cannot be denied that on the subject of substitutions the law of France and our law are exactly the same.
   The judgment of the court was pronounced by

Preston, J.

Marie Fanny Roy made a will containing the following dispositions: X. “ Je donne et légue k mon frére Solastie Alexandre Roy la somme tant en capital qu’en inlérét de l’argent que je lui ai prété, pour sa vie durante, et en cas de mort sans héritiers. Je désire que cette somme retourne á Pierre Solastie Roy mon frére. 2. Je donne et légue k Josette Roy veuve de feu Louis Guidry fils, ma sceur, ma mulatresse nommée Caroline, agée d’environ dix-neuf ana, et son fils Cyprien, agée d’environ deux ans, ainsi que la part indivisée d’une terre situeé dans l’anse du bayou Téche, paroisse St. Martin, pour sa vie durante, et aprés sa mort á son fils Louis Cyprien Guidry."

The heirs of the deceased have attacked these provisions in the will as prohibited by law, and ask that they be annulled by judgment. Our Civil Code declares, that “ every disposition by which the donee, the heir, or legatee, is charged to preserve for or to return a thing to a third person, is null even with regard to the donee, the substituted heir or the legatee.”

Under this law, in the case of Ducloslange v. Ross, a donation, substantially the same with the first disposition in the will under consideration, was annulled by this court. 3d Ann. 432. So a similar donation was declared null by the late Supreme Court, in the case of Arnaud v. Tarbe et al-, and the reasons presented by Judge Mathews for the judgment, and his strong exposition of the motives of public policy which induced the Legislature to prohibit substitutions and fidei commissa, are conclusive upon our minds as to the nullity of the first disposition. 4 L. R. 505. In the disposition under consideration, as well as in both those cases, the title to the property could not vest in the second donee, until it was ascertained that the first left no heirs.

In the cases of the succession of Ducloslange, 4 R. R. 410, and of the Heirs of Cole v. His Executors, 7 N. S. 417, these principles were fully recognized by the Supreme Court, but considered not applicable to those cases.

It is urged, however, that in this disposition in favor of one brother, the testatrix merely expresses a desire that the amount bequeathed to him should return to her other brother in the event of the first dying without heirs; that she does not even request, much less direct it. In wills, the desires of a testator are his wishes, and his wishes, if legal and formally expressed and published, are his will, and imperative upon his legal heir or representative.

The defendant’s counsel contends, that the second disposition in controversy in reality gives the usufruct of the property to one, and the naked property to another, and is protected by article 1509 of the code from the nullity declared in article 1507.

The reasoning of the Supreme Court in the case of Rachal et al. v. Rachal et al. 1 R. R. 115, strongly supports his views of the case. The legatees under this disposition are both in existence; are designated by it; the interest of each is clearly pointed out, and made dependent upon no condition ; and we see no reason why the interest of each should not vest at the death of the testator. The interest of the mother would, at her death, descend to her heirs; that of the son to his heirs. There is no substantial difference between a life estate and a usufruct for life vested in a mother, the naked property being vested in her son. The rights and duties of the parties are the same in each case. The property is bequeathed to the mother during life, that is, substantially, she is to have the enjoyment or usufruct of it. Louis Guidry is the legatee of the naked property, that is, the title is vested in him. Should he die before his mother, bis interest would vest in his heirs or representatives, subject to the interest or, in reality, usufruct of the mother.

We think these were the views and intentions of the testator, whose intentions we are bound to ascertain, (Code, art. 1705.) and to interpret his dispositions in such a manner as to give them effect, if it be possible, without departing from the proper signification of the terms of his testament. Code, 1705, 7006. And in cases of doubt, to presume that the testator intended to do that which was lawful, rather than that which was prohibited by law, and to cany into effect his will, unless it clearly violates the prohibition which the Legislature established. Cole's Widow v. His Executor, 7 N. S. 410.

It is therefor© ordered, adjudged and decreed, that the judgment of the district court be affirmed, so far as it annuls the legacy in the will of Mane Fanny Roy in favor of her brothers Solastie Alexandre Roy and Pierre Solastie Roy ; and that it be reversed so far as it annuls the legacy of the testator in favor of her sister Josette Roy, the widow of Louis Guidry, and her son Louis Cyprien Guidry, and that there be judgment in their favor. And it is further decreed, that the plaintiffs pay half the costs in both courts, and Solastie Alexandre Roy and Pierre Solastie Roy pay the other half.

Slidell, J.

With the limited means I have had of examining the subject, I have come to the same conclusion as Judge Preston has adopted, with respect to the dispositions of the will.

Rost, J.,

dissenting. I am unable to distinguish between the two dispositions of the will in this case.

An estate for life is not a usufruct. By the terms of the donation, the son has no title or claim which he could transmitió his heirs if he died before his mother; she is charged to preserve and to return the property. This is one of the substitutions prohibited by law.

I am of opinion that the judgment ought to be affirmed.  