
    No. 8523.
    Eliza E. Marshall et al. vs. Sarah H. Pearce et al.
    Where a ■will says: I give and bequeath to ray wife property, to have and to hold during her natural life ; after her death. I give and bequeath the same property to my grandson, it is void as a prohibited substitution.
    The first bequest constitutes an imperfect ownership for life, and not an usufruct.
    The .second bequest, by its terms, takes effect only after the death of the first legatee.
    The charge on the first legatee *• to preserve and return ” need not be express, and here it is necessarily implied.
    This case is distinguished from 31 A. 45(5, and similar cases. Roy vs. Latiólas, 5 A. 552, overruled.
    APPEAL from the Twelfth Judicial District Court, Parish of Rapides. Harbin, J.
    
      li. J. Bowman, for Plaintiffs and Appellees:
    The will contains a substitution, for the following reasons:
    1. Because it is drawn in the exact language of the entail of the common law and the substitutions limited by the ordinance of 1747, and prohibited by the Code Napoleon, Kent, Yol. 4, pages 20 and 21, and what was an entail or substitution then, must be one now.
    2. Because the devise of the movables is not included is the devise to Joshua Pearce, but is to Mrs. Pearce in absolute ownership; but they are devised to Mrs. Pearce by the same clause by whieh the land is devised, and inseparable from it, and if the movables are in absolute ownership, the land must be.
    
      X The land being devised in absolute ownership to Mrs. Pearce during her life, no title will vest in Joshua Pearce until her death, and upon the contingency of his surviving her, and is therefore a substitution. '
    4. If the will should be held valid, its dispositions are beyond the disposable portion.
    
      J. Q. White, W. F. Blaelman and James Andretos, Jr., for Defendants and Appellants:
    It is not a substitution to give a life estate or usufruct to one and the naked property to another that is in existence, at the time the donation is made, and who is capable of inheriting. Arts. Civil Code, 1529, 1'522; Robinson Reports, 115; 3 An. 499; 5 An. 552; 10 An. 28 ; 31 An. 456.
    A donation mortis causa, for more than the disposable portion, is not null, but reducible to that quantum. Civil Code, 1502.
    The disposable portion, where the disposer leaves three or a greater number of children, is one-third. Civil Code, 1493.
    To determine the reduction to which donations are liable, to the value of the property at the time of the death of the testator, must be added fictitiously the value of the property disposed of either inter vivos or mortis causa, from this the debts of the estate must be deducted, and the disposable quantum is calculated on’the balance. Civil Code, Art. 1505.
    If the disposition of an usufruct or annuity, the value of which exceeds the disposable portion, the forced heirs can either execute the disposition or abandon to the donee the ownership of such portion of the estate as the donee had a right to dispose of. Civil Code, Art. 1499.
   Tlie opinion of the Court was delivered by

Fenner, J.

This is a suit by two of the children and forced heirs, to annul the following will of Joshua Pearce, as containing a prohibited substitution:

“ First. I give and bequeath unto my beloved wife, Sarah H. Pearce, the upper part of my plantation upon which I reside, situated on Rayon Boeuf, in the Parish of Rapides, containing one hundred acres, four acres front and twenty-five acres deep, running parallel with the plantation of W. J. S. Johnson, together with all the improvements and movables thereon, to home and to hold during her natural life.”
“Item. After her death, I give and bequeath unto my grandson, Joshua Pearee, son of William and Martha'Pearce, the above described land and improvements.”

The simplest test of the substitution prohibited by our law, is that it vests the property in one person, at the death of the donor, (in case of testaments) and, at the death of such person, vests the same property in another person, who takes the same directly from the testator, but by a title which only springs into existence on the death of the first donee. Such a disposition destroys the power of alienation of the-property by the first donee, because he is bound to hold it until his death, in order that the person then called to the title may take it. At the same time, no power of alienation exists in the second donee during the life of the first, because his title only comes into being at the death of the latter.

The practical mischiefs, which the prohibition is intended to prevent, are : that such dispositions place property out of commerce; and that they are a cause of deterioration of property and preventive of its improvement, because the possessors, conscious that they can neither profit by improvements, nor transmit them to their heirs or chosen successors, are naturally tempted to get the most out of the property with the least expense upon it. Other mischiefs are mentioned by Marcadó, 3 vol. p. 366.

It is obvious that the disposition of the will now under consideration falls within the prohibition under the above test, and entails the very mischiefs above mentioned, unless, under some possible interpretation of the language thereof, it can be held to import an immediate bequest of the naked ownership of the property to Joshua Pearce, the grandson, subject to a mere usufruct in the widow during' her life, which would bring it under the jurisdiction of C. C. 1522.

We think that under the Code Napoléon, there is no room for doubt that the provision in favor of Mrs. Pearce would be considered a mere usufruct. That Code recognizes but one kind of ownership, defined to be the right of enjoying and disposing of the things in the most absolute manner.” C. N. 544.

The authors agree that this definition includes, as one of the essential characteristics of ownership, that it should be, actually or potential^, perpetual. Thus, Demolombe says : Le droit de propriété est perpétuelj et nous avons citó plus liaufc un considérant d’un arrét de la " cour de cassation, qui déclare quHl ne sanrait étre borne par le temps

* * * D’ou il faut conclure qu’nne concession d terme ne sanrait étre translative de propriété.” 1 Demolombe, distinc. desbiens, No. 546.

Hence, it is held that sale or other concession of property, for life, or for a term, not being translative of property, conveys merely an usufruct. 14 Merlin Rép. “Usufruit,” p. 362; 1 Demolombe, distinc. des Mens, No. 500.

Our Code, however, treats of ownership in a different manner. It divides it into per/eci and imperfect ownership. The perfect ownership is perpetual. “ On the contrary, ownership is imperfect, when it is to terminate at a certain time or on a condition.” C. C. 490.

Thus, the Code distinctly recognizes the right of ownership for a term; and though this ownership be imperfect, and though the rights derived therefrom be subject to certain restrictions not attached to perfect ownership, it is nevertheless a distinct right of property in the thing so held. It is, therefore, entirely distinct from an usufruct, which' is defined to be “the right of enjoying a thing, the property of xohich is vested in another.'1'’ C. C. 533.

Imperfect ownership is exclusive of any co-existing ownership of the same subject, in another, during the term of its own duration. This is of the essence of ownership, whether perfect or imperfect. C. C. 494.

The argument, therefore, that a concession for life or for a term, must be an usufruct, because it cannot be an ownership, though valid under the French law, has no force under ours. It is, as we have shown, entirely competent to convey an ownership for life.

We are then brought face to face with the question: What is the effect of the disposition of this will in favor of Mrs. Pearce ? Does it confer an ownership for life ? Or does it confer an usufruct ?

The terms are, “ I give and bequeath unto my beloved wife,” what ? The usufruct of property? No, the property. For what purpose? “To be used, enjoyed and occupied by her, during her natural life,” as in the case of the Succession of Law, 31 A. 456 ? No, “ to have and to hold during her natural life,” the technical habendum ac tenendmn, which conveyancers have used immemorially as significant of the grant of property. If these are not terms conveying an imperfect ownership for life, what terms would do so ?

Unless we should hold that every disposition by which a person gives, or sells, or otherwise conveys, property to another for life or for a term, is a constitution of an usufruct, we see not how such interpretation can be placed on this will. Yet such á> method of construction would negative the existence of that kind pf imperfect ownership which is to “terminate at a certain time,” and thus to render part of C. C. 490, nugatory.

We find no words in the will suggestive, in any degree, of the constitution of the usufruct, and, still less do we find any capable of conferring any right whatever upon the grandson, prior to the death of Mrs. Pearce.

Where should we find authority to impose upon Mrs. Pearce the obligations of an usufructuary 9 How should we require her to give security, (C. C. 5589) to make necessary repairs, (571) to keep up roads, bridges, ditches, levees, etc. (578) 9 How should we be authorized to decree the absolute extinction of her right, prior to the expiration of the term fixed by the donor, on the ground of the abuse of her enjoyment of the property, (C. C. 621)9 And whence would the grandson derive the right to claim the performance of such obligations, when, under the express terms of the will, the property is only given and bequeathed to him, “ after her death 9 ”

Evidently, there is no language in the will, expressly or impliedly, imposing such obligations on Mrs. Pearce, or conferring such rights on the grandson.

We do not believe such was the intention of the testator. We believe he intended his wife should hold this property, in imperfect ownership, free from interference by anybody, during her life. It is well settled that the “ charge to preserve and return,” need not be express. It may be implied, and it is implied here.

We have carefully compared the disposition of this will, in this respect, with those held void as substitutions in the following cases, without being able to discover any distinction, in principle, between them. Provost vs. Provost, 13 A. 574; Wailes vs. Daniel, 14 A. 578; Anderson vs. Pike, 29 A. 120.

We find analagous decisions of the French Court of Cassation, holding void a disposition by which a testator bequeathed an immovable to one, with provision that, at his death, it should pass to another; and holding void another bequeathing to one with provision that, at his death, the property shall belong to another designated person. Journal du Palais, 1851, vol. 2, p. 478; Ib. 1850, vol. 1, p. 454.

In all these eases, the charge to “ preserve and return,” w'as implied.

The case of Succession of Law, 31 A. 456, rests entirely upon the use of the words qualifying the first bequest, “to be used and enjoyed and occupied by him during his natural life,” which the Court held to be, in themselves, clearly significant and descriptive of an usufruct; and, from this fact, the Court ^not without difficulty) deduced the inference that, by the phrase, “ at his death to go to ” others named, the testator really meant to make these last immediate legatees of his estate, subject to the life usufruct of the husband.

There are no similar words in this testament to support such a construction of either estate.

Like considerations controlled the decision of the following cases, viz: Succession of Ducloslange, 4-Rob. 409, where the donation to the first legatee was “ pour enjouir sa vie durant;” Succession of Barker, 10 A. 28, where the legacy was of the rent of a house to one during life, and of the house to another at the death of the first; Fisk vs. Fisk, 3 A. 494, where the bequest was to A “ for his sole use and benefit during his natural life,” and at his death to others.

The case of Roy vs. Latiolas, 5 A. 552, is the only one in which a bequest for life, without words expressly tending to qualify it as an usufruct, was held to import such. That decision was rendered at Opelousas, when but three Judges were in their seats, Chief Justice Eustis being absent. Judge Preston was the organ of the Court. Judge Slidell, in assenting, expressly referred to the “ limited means he had had of examining the subject.” Judge Rost dissented.

Its authority is of the weakest kind. The opinion rests upon the grossly unscientific proposition that “there is no substantial difference between a life estate and an usufruct for life; the rights and duties of the parties are the same in each case.” Judge Rost rightly said: “ An estate for life is not an usufruct.” Obviously, there is not only a substantial difference between an estate for life, or an imperfect ownership for life, and an usufruct, but they are absolutely inconsistent with, and contradictory of, each other; and the rights and duties of the parties are entirely dissimilar, as we have already shown.

We cannot follow this decision. It .renders the decisions quoted above, simply absurd. For of what use or moment would it have been to discuss the effect of the qualifying words in those several cases, if the mere fact that the bequest was for life, was sufficent to stamp it as an usufruct, and thereby to sustain the will ?

With great respect for the ability usually displayed by the Judges who participated in that decision, we are compelled to say that the proposition on which it rests is so preposterously untenable, that we can only characterize it as an example of Homeric nodding. With all possible desire to effectuate testamentary dispositions, and to impress upon them a lawful, rather than an unlawful meaning, the language of this will and the collocation of the two bequests in separate and independent items, leave no possible doubt that the intention of the testator, clearly and unambiguously expressed, was, first, to give to his wife the ownership of this property during her life; and second, after her death to give it to his grandson.

This implies, necessarily, the charge to preserve and return ; and under the imperative mandate of C. C. 1520, the disposition must be declared null.

Judgment affirmed, at appellant’s cost.

Dissenting Opinion.

Bermudez, C. J.

Guided by.the light of the jurisprudence of this State, I fail to see that the will of Joshua Pearce contains any prohibited substitution.

To my mind, it is apparent that, when he bequeathed to his wife his plantation and movable effects, ‘‘ to have and to hold during her natural life,'1'' he merely intended to give her the usufruct of that property, and that when he bequeathed to his grandson, Joshua Pearce, Jr., the same things, at the death of his wife, he meant to give him the naked ownership ■ first, and the absolute ownership next, at the demise of his widow.

In the interpretation of last wills, the intention of the testator must first be ascertained, and testamentary dispositions have to be understood in the sense in which they can have effect, rather than that in which they can have none.

In construing a will, it has been said that the intention of the testator is the polar star by which the Court should be guided, and it is the duty of those who have to expound it, if they can, ex fumo dare lucem. In other words, the first thing to be done is to ascertain what was the intention at the time of making the will, and then to carry out that intention, find out quod voluit by interpreting quod dixit.

Not only are these fixed and established rules by which Courts will be guided, but there are certain technical expressions of which the legal interpretation is different from that which in ordinary language would be attributed to them, and consequently in a will, in which such expressions may occur, may, in some cases, be made to operate in a manner different from that which may, apparently, by close and sharp analysis and criticism, be claimed to have been intended by the testator, the duty of the Court being to give effect to all the words of the will, and to construe technical words in their proper sense, when they can consistently be so understood, to carry out a legitimate intention, particularly where the technical words have a popular sense to the same effect. In testamentis plenius volwntates testarntimn interpretantur. D. 50, 17,12; 7 L. 230 ; 8 L. 43; 2 A. 581; 7 A. 127; 7 R. 481.

Where a testamentary disposition is susceptible of two interpretations, one which will destroy it, and another which will execute it, the latter should unhesitatingly be preferred andcarried out. Melius valeat quarn pereat, for tlie obvious reason that it must be presumed that the testator intended to do that which was legal, rather than that which was prohibited. 7 U. S. 416; 4 L. 504; 4 R. 409; 8 A. 113; Toullier 5, No. 44; Duranton 8, No. 5162; 3 Marcadé, 418, 428; Merlin, Vo. Sub. Fid. Sec. 8, No. 7.

The law of this State expressly permits dispositions inter vivos and mortis causa, by which the usufruct is given to one and the naked ownership to another. R. C. C. 1712, 1713, 1522.

It is striking that there exists, nowhere, any authoritative definition of a prohibited substitution, none is found, either in the Napoleon or our own Code, in the French, or our jurisprudence.

It may, however, well be stated to be a disposition by which a testator intends to bequeath thefvM ownership of a thing to one person, charged to preserve and to return it, at his death, to a third person who, then only, inherits the same. In other words, it is a disposition by which, after giving absolutely a thing, the testator arrogates to himself, as though he had not divested himself of title to it, the right of settling the succession of his legatee, by giving again the same thing to another legatee who is to own it, at the death of the first legatee.

The thing intended to be received by the second legatee must be the same thing that was designed to be bequeathed to the first legatee, with all the rights which the first legatee had received, and which the testator possessed, at his death, to that thing.

The testator, in this case, has not bequeathed the full ownership of the land and movables to his wife. The very qualification of the length of her tenure repels the proposition, for it is of the essence of the right of ownership that it b& perpetual.

A true and crucial test, to be applied in such inquiry, is:

Whether, or not, the first legatee, gramatus, who takes immediately from the testator, would, by the predecease of the second legatee, who takes mediately from tlie testator, through the first legatee, acquire an absolute, indefeasible title to the thing bequeathed ; in other words) whether, or not, by the death of tlie second legatee, before the first legatee, (both surviving the testator) the first would remain such owner of the thing as the testator himself was iii his lifetime.

Where the answer is in the affirmative, there exists a substitution ; where it is in the negative, there exists none.'

Now, in this instance, would Mrs. Pearce, by the death of Joshua Pearce, Jr., before her, become the absolute owner of the plantation and movables ? 'Evidently not.' The conclusion irresistibly is, that there exists, therefore, no’ prohibited substitution, and that the will is perfectly valid. ' . ■

Tlie assumption that he gave the imperfect ownership is likewise fatal. That sort of ownership being recognized, as it appears to be, it follows, that it can be acquired and, therefore, transferred, as there is imposed no limitation touching the cases in which it can be conveyed, and can thus accrue. If this can be done, to take effect' during life, there is no perceptible reason why it should not also occur, to take effect after life. I fail to perceive that the law concerning undefined, prohibited substitutions, extends to such cases. The law prohibits certain substitutions, not all, for reasons of public policy, which are well known and need not be enumerated, not one of which appears to exist in the present instance.

At the death of Joshua Pearce, it could not be difficult for the State assessor and tax collector to ascertain, at first sight, that Mrs. Pearce was the usufructuary, and Joshua Pearce, Jr., the naked owner of the property bequeathed. The first could lose nothing on account of uncertainty in the. ownership of the things given by the testator.

To say that the will of Law and that of Pearce are dissimilar, because the former is expressive of the right of use and enjoyment by the legatee, while the latter is reticent on the subject, is to gratuitously negative the undeniable proposition, that legacies are essentially and invariably excluded from those privileges, unless when distinctly announced. The right to use and enjoy are clearly implied in this- case.

A legacy of property to have and hold the same during life, is a life estate at common law, equivalent to an usufruct in the Roman, or civil law.

There does not exist among the reported cases. adjudicated by this Court, any instance in which such a legacy ever was construed as one of ownership of any kind, and was consequently annulled, as containing a prohibited substitution. Neither have I been able to find a solitary case in which a testamentary disposition was avoided on that ground, by less than a unanimous court, so true is it, that this should be done in glaring cases only.

I think that the will of the deceased can legally and conscientiously be saved from destruction and annihilation by the provision of the Code, which permits the giving of the usufruct to one, and the naked ownership to another.

The objection that the first legatee is charged to preserve and return, is not a test, for that is clearly the duty, the obligation of the usufructuary, as specially declared by law. R. C. C. 567, 594; 18 A. 285.

As was well said by Mr. Justice DeBlane: “The last will of those who depart this life is the last expression of their love, friendship or gratitude, and where it violates no law, that will, by far the most sacred of all things,- should be as respected as the grave of the dead.” 30 A. 217.

Unless this Court has flagrantly misunderstood and applied the law in its previous adjudications, it is difficult to perceive how the will of Joshua Pearce can be legally destroyed and blotted out of existence. 31 A. 456 ; 10 A. 28 ; 5 A. 552 ; 3 A. 494; 1 R. 115 ; 4 R. 176, 409; 12 R. 660; 13 A. 197; 7 A. 395.

I, therefore, dissent from the opinion and decree.

Levy, J., absent.  