
    Samuel K. Montgomery et uxor vs. William G. Millikin et uxor et al.
    As a general rule, a suit for the recovery of a legacy should be brought against the executor, in the jurisdiction having cognizance of the will j yet when the fund, out of which the legacy is payable, is traced to the possession of the heir of the testator, in a different jurisdiction from that having cognizance of the will, the suit may be maintained there.
    Where a will made in another state is probated there, and the testator has property in this state, and a copy of the probated will is admitted to probate in this state, according to the statute (How. & Hutch. 388,) in a suit for a legacy under the will brought in the courts of this state, a certified copy of the probated copy of the will, from the probate court in this state, will be admissible evidence of the will.
    Where a legacy was given, payable out of a fund in Louisiana, and the testator had property in this state which the legatee attempted to subject to the payment of his legacy ; Held, that the property in this state could not be resorted to, until the fund in Louisiana was shown to be insufficient.
    Where the testator directed certain lots of ground to be sold by his executor, if in the opinion of the executor it should be advisable, to accomplish the purposes of the will, it seems that this is a discretionary power conferred upon the executor personally, and cannot be exercised by the administrator cum tes-tamento annexo.
    It is the policy of the law of Louisiana to give effect to the intention of the testator whenever it can be gathered from the will; and where a testator is inhibited by law from bequeathing over a definite amount, to persons holding a certain relation to him, and exceeds that amount, through ignorance of the law or other cause; the bequest will not be void, but that part which exceeds the disposable portion will be reduced to the disposable amount, and held valid so far.
    A bequest, in Louisiana, of an interest in property greater than that which the law authorizes, but which is capable of reduction or conversion to the legal standard, is not void, unless some law has rendered it illegal or it is contrary to the spirit of the law.
    Where, by the law of Louisiana, a person who has married a second wife, and who has children by his former wife, and is inhibited from leaving his widow more than one fifth of his estate, and that only as an usufruct, makes a will, leaving to his wife a large sum of money absolutely, the legacy will not be void, but must be converted from the bequest of an absolute sum into its equivalent of usufruct.
    The proportion that the usufruct bears to the absolute estate, where usufruct 
      and absolute property are marshalled, is, that the usufruct of the whole is equal to the right of property of the half, and in that ratio.
    A., domiciled in Louisiana, died, leaving a second wife and children by his first wife surviving him ; by his will he gave five thousand dollars in fee to his second wife; Held, that the testator being prohibited by law from leaving to his wife more than the usufruct of one fifth of his estate, and five thousand dollars absolutely being equal to the usufruct of ten thousand dollars, that the widow should have the usufruct of ten thousand dollars, if it did not exceed one fifth of the value of the whole estate ; and if it did exceed one fifth of the value of the whole estate, that then the widow should have the usufruct of one fifth of the estate.
    On appeal from the superior court of chancery.
    Samuel K. Montgomery, and his wife Mary Ann, filed their bill in the superior court of chancery of this state against William G. Millikin and Isabella his wife, John P. Walworth, trustee, and Samuel McAlister, administrator, with the will annexed, of David Alexander, deceased.
    The bill averred, that on the 30th day of September, 1830, David Alexander, of the county of Adams, in the state of Mississippi, being then in Kentucky, made his last will and testament, and shortly after died; that his will was duly probated before the county court of Woodford county, in that state, and the proceedings therein duly certified to the probate court of Adams county, and the copy of the will thus certified was duly admitted to record in that court as the last will of David Alexander ; a certified copy of this copy, from the probate court of Adams county was filed as an exhibit to the bill.
    The only portion of the will it is deemed now necessary to notice is the clause under which the complainants claimed. After providing for a sale of his property in Louisiana, consisting of land, negroes, and stock, and also for a sale of his property in Mississippi, is the following provision, viz : “ Out of my portion of the sale, I wish five thousand dollars to go to my wife Mary Ann.”
    William Alexander, of Ohio, was appointed executor, but the bill stated that he did not qualify; that administration, with the will annexed, was granted to Samuel T. McAlister, who, by order of the court, sold some unimproved lots in the city of Natchez, jointly owned by David and Thomas Alexander, for about twenty-four hundred dollars; that the complainants knew of no other funds of the estate that ever came to McAlister’s hands; that the price of those lots was in the shape of promissory notes, and had never been collected; and that McAlister never had had funds enough to pay the legacy bequeathed to complainant, Mary Ann, who had, since the death of her first husband, David Alexander, the testator, intermarried with her co-complainant, Montgomery.
    That David Alexander, at his death, possessed considerable real and personal estate in Louisiana,; and that his will was also probated there, and Thomas Alexander appointed executor of the same, who sold all the estate for about thirty thousand dollars ; but as he retained possession of all the property after the sale, it was doubtful whether he had sold or not; that the complainant, Mary Ann, is the same person named in the will, to whom ••tri'legacy of five thousand dollars was given; that David Alexander left one child, the defendant, Isabella, who married her co-defendant, William G. Millikin.
    That Millikin and wife, $is heirs of Alexander, have had a final settlement with Thomas Alexander, and received part of the inheritance, and good security for the remainder, but that this remainder had been conveyed to the defendant, Walworth, as, trustee by a deed which is made an exhibit to the bill, by which the property is secured to the separate and exclusive use of Millikin’s wife. The property conveyed by the deed of trust amounts to thirty-two thousand dollars, secured to be paid to the trustee in one, two and three years, to hold for the sole use of Isabella.
    That by this arrangement Millikin and wife became possessed of sufficient funds to pay the legacy; that the complainants had frequently applied to Thomas Alexander to-pay this legacy, who put them off, denying he had funds, and promising payment in a short time; that since the final settlement between Millikin and his wife and Alexander, complainants had demanded payment of Millikin, who pretended he had sets-off against their claim, on account of payments made by Thomas Alexander, and also on account of the liability of said Mary Ann to pay part of a debt due by the succession of David Alexander for a tract of land purchased by him in his life-time; and at one time promised to pay it, and at another refused positively unless compelled ; that they never demanded said legacy of S. T. McAlister, because they knew he had no funds, and believed Thomas Alexander would execute the will some day or other; that when Millikin and wife settled with Alexander, they recognized the sale and purchase by him as valid, and received the proceeds instead of the property.
    The bill prays that McAlister may discover what funds he has of the testator, and pay over the same in part discharge of the legacy; that all the defendants may discover what funds of the testator they have ; that an account may be taken, and that the legacy may be paid, and for general relief.
    To this bill there was a demurrer by all the defendants, which was overruled by the chancellor; they then answered.
    S. T. McAlister admitted his appointment as administrator, and that he took the administration!; that he sold real estate of the testator, one lot to Beaumont for $1205, payable in one and two ji-ears, the other lot to Thomas Alexander for $1230, payable in one and two years; that Beaumont paid $602 20 ; but neither of the other payments have ever been made.
    That he settled his final account with the probate court of Adams county, on which there was a balance due him of $64 07, and that he then surrendered his letters of administration.
    Millikin and wife deny that David Alexander was on the 30th September, 1830, a citizen of Adams county, and assert he was a citizen of the parish of Concordia, Louisiana, but admit he was travelling in Kentucky, and died there; that a document was admitted to probate in Woodford county, Kentucky, as the will of David Alexander; but do not know whether it was duly executed and legally probated in the probate court of Adams county or the parish of Concordia, and call for full proof. They admit that letters of administration were granted to McAlister, and that he sold some land owned by David and Thomas Alexander jointly, but do not admit his authority, or that his sale was legal, and require proof; they do not admit that McAlister was legally appointed administrator; they admit that Thomas Alexander was appointed dative testamentary executor, but do not admit that he was lawfully appointed, and require proof; they admit that Isabella was sole heir of David Alexander, and that she has intermarried with W. G. Millikin; that Isabella was a daughter by a former marriage, and inherited a considerable estate from her mother, which went into the hands of Thomas Alexander as her tutor; they deny that Thomas Alexander sold the estate for near $30,000; they are informed that the estate at the death of David Alexander was not worth more than $>16,000; they deny that Mary Ann, who married David Alexander after the death of Isabella’s mother, is entitled to any part of the legacy of $5,000, but aver that the same is void ; that if she is entitled to the legacy, her remedy is against McAl-ister, and not them; that if said legacy is legal and valid, about $1638 have been paid by Thomas Alexander ; they admit the execution of the deed of trust to Walworth, and the delivery of the notes to him therein mentioned; which notes were given for the inheritance of said Isabella, as well of her mother as her father, and that her father’s estate only amounted to $16,000.
    The following evidence was read before the chancellor.
    1. A transcript from the record of the probate court of Adams county, establishing the will of David Alexander, the appointment of S. T. McAlister, administrator, and his final account, showing a balance in his favor.
    2. A copy of the record of the probate of the same will in the probate court of the parish of Concordia, and ordered to be executed, and the appointment of Thomas Alexander executor ; the process verbal of the sale of the succession by the judge of probate’s including the interest of Thomas Alexander, who was an equal owner.^^
    The plantation e# slaves sold for.$ 32,000 00
    A tract of land, called the Ferry tract, sold for . . 1,551 00
    In all amounting to the sum of. $33,551 00
    
      One half of which was David Alexander’s succession, being... 16,775 50
    To which, adding the proceeds of one half the tract called the Minor tract, and which sold for . . . 3,125 00
    Made David Alexander’s whole property about $19,900 50
    It is not deemed necessary to give a more full abstract of the answers or evidence upon the subject of the value of the estate of David Alexander; the amount that had come to the hands of Millikin and wife; the extent of the alleged payments by Thomas Alexander to the complainants ; or the existing state of accounts between the respective parties; as they will not in any way bear upon the opinion of the court.
    The deposition of Thomas Alexander proves the inventory of the estate in Louisiana, owned by himself and David Alexander jointly; and that David Alexander had his permanent residence in Louisiana, although he resided part of each summer in Mississippi ; the rest of his testimony on the subject of the respective indebtedness of the parties and the value of David Alexander’s estate, is omitted.
    He also proved, that he was executor of David Alexander’s will in Louisiana, and had made a final settlement with Milli-kin and wife, and paid them some money and secured the balance ; the whole amount being $32,000, which included the value of Isabella’s separate property; that Mrs. Montgomery had never received anything on account of the community with her husband, under the laws of Louisiana; that he had advanced her money on her own account, but expected to get a credit for it on the legacy; that he had plead the same payments to a suit brought by Alexander Montgomery, as trustee for Mary Ann Montgomery, on a note of his own for $5,000; that he was not allowed any credit for the sum he had paid in his settlement with Millikin and wife; that -they gave him a bond to pay him any sum which should be allowed as a set-off to the legacy when the same was decided.
    Dr. Woodsen then also proved the residence of David Alexander to have been in Louisiana at the time of his death.
    Upon this state of the pleadings and the facts, the cause was submitted to the chancellor, the Hon. Robert H. Buckner, who delivered the following opinion, viz. :
    Chancellor. This suit is brought to recover a pecuniary legacy, claimed under the last will and testament of David Alexander, deceased, who, at the time of his death, was domiciled in the state of Louisiana, but was temporarily in the state of Kentucky on a travel, where he made his will, appointing William Alexander his executor; to whom he gave power and instructions, to sell his entire estate in the state of Louisiana, which he held in joint ownership with his wife, and his brother Thomas Alexander; ,and directed that five thousand dollars should be given to his wife, out of the proceeds of that sale. The will directs, that the property owned by the testator in this state (consisting of town lots in the city of Natchez,) should be sold at the discretion of the executor. This will was probated in the state of Kentucky, in the county where the testator died, and certified to the county of Adams in this state, where letters of administration, with the will annexed, were granted to the defendant, McAlister; the will was also certified to the probate court of the parish of Concordia in the state of Louisiana, where it was admitted to record, and ordered to be executed, by Thomas Alexander, as dative testamentary executor; the court having decided that the executor named in the will, being a citizen of another state, cotild not, under the laws of Louisiana, be allowed to act there. It appears that the testator left, at the time of his death, his wife, who since intermarried with the complainant, Montgomery, and one child by a former marriage, who has since intermarried with the defendant, Millikin. The bill charges, that there has been a sale in some form of the estate in Louisiana, and that a part of the proceeds have been received by Millikin, and the remainder secured to the separate use of his wife, by means of a deed of trust from said Thomas Alexander to John P. Walworth. That the town lots in this state have been sold by the defendant, McAlister, and that the proceeds thereof yet remain in his hands. That Thomas Alexander has refused to pay to the complainants the legacy given under the will, and prays that McAlister may be decreed to pay whatever remains in his hands, and that the remainder may be decreed to be paid by Millikin and wife, through the trustee, John P. Walworth. The first question that presents itself, is, whether this court has jurisdiction of the case. It was urged, that a suit for the legacy under the will could, only be maintained against the executor in the state of Louisiana, who had charge of the fund out of which the legacy is payable. Although, as a general rule, a suit for the recovery of a legacy should be brought against the executor, in the jurisdiction having cognizance of the will, yet, where, as in this case, the fund out of which the legacy is payable, is traced to the possession of the defendant, Mrs. Millikin, who is a citizen of this state, and who claims the fund in question as the sole heir of the testator, I can see no defect in the frame of the suit in this particular. Millikin and wife having come into possession of the particular fund upon which the legacy is charged, they must be regarded as having taken it subject to the trust with which it was clothed in the hands of the executor from whom they received it. The counsel for the defendant made the following point upon the merits.
    “ 1. That there is no legal proof of the existence and execution of the will under which the complainants claim.
    
      “2. That if the will were proven, the assets in the hands of the defendant, McAlister, cannot be subjected to the payment of the legacy therein given.
    “ 3. That the legacy to the complainant, Mary Ann, who was the wife of the testator, is given absolutely, and not merely in usufruct, and is therefore void under the laws of Louisiana.”
    1. It appears, that the will in this case, although made and probated in Kentucky, was admitted to record and ordered to be executed in the state of Louisiana, upon the exhibition of a copy of the will, and probate thereof in the court in Kentucky. The laws of Louisiana provide, that a will made in any other state shall take effect in Louisiana, if it is clothed with all the formalities prescribed for the validity of a will in the place where it was made. Civ. Code, art. 1589.
    It is also provided, that such will, where it appears to have been probated before the proper jurisdiction where it was made, may be executed in Louisiana, without any other form than that of having it recorded. Civ. Code, art. 1681,1682.
    The will having been recognized and acted on in the proper court in Louisiana, this court cannot question the validity of its execution and probate, so far as it affects property within that state. The evidence offered in this case, to establish the existence of the will, consists in a certified copy from the records of the probate court of the county of Adams, showing, that a certified copy of the will from the court in Kentucky, had been admitted to record in this state. It is said that this evidence is inadmissible, because it is a mere copy from a copy. The statute provides, that an authenticated copy of a will made in another state may be admitted to record in this state. How. & Hutch. 388, sec. 13. It is also provided, that certified copies of all instruments, which are permitted or required to be recorded, shall be received in evidence in any court of law or equity in this state. (How. & Hutch. 610, sec. 34.) These provisions, I think, remove the objection referred to.
    2. Upon the second point, I think it clear, that the proceeds of the town lots in this state cannot be pursued in the hands of the defendant, McAlister. First, because the will directs the legacy to be paid out of the proceeds of the sale of the estate in Louisiana; the legacy is therefore properly chargeable upon that fund, and a resort cannot be had to the general assets of the testator, until that fund is shown to be insufficient. (Patton v. Williams, 3 Munf. R. 59 ; Mayrant v. Davis, 1 Dessaus. 202.) Secondly, because I am satisfied that the sale made by McAl-ister was illegal and void. The power of selling those lots is made discretionary with the executor named in the will, and did not attach in favor of the administrator with the will annexed. It was the discretion of the executor named in the will, to which the testator confided for determining whether the estate in Mississippi should be sold or not, and not the discretion of one who might be appointed administrator with the will annexed. Hence we find it has been decided, that where an executor is vested, by the will, with power to sell lands belonging to the estate of his testator, this power cannot be exercised by an administrator with the will annexed. (Brown v. Hobson, 3 Marsh. Rep. 380.) The will not directing an absolute sale of the lots, they are not to be regarded as converted into personalty, but as having descended to the heir-at-law; and no rule is better established, than that a pecuniary legacy is never chargeable upon real estate in the hands of the heir, unless such intention is clearly expressed by the testator.
    3. The next question is, whether the legacy, in the form in which it is given, is sanctioned by the laws of the state where the testator was domiciled at the time of his death. This must determine the right of the complainants, as against Millikin and wife. It appears that the legatee was the second wife of the testator, and that he had one child by his former marriage. By the laws of Louisiana, a man who contracts a second marriage, having children by a former one, cannot give to his wife exceeding one fifth of his estate, and that only as an usufruct. Civ. Code, art. 1754; 7 Louis. Rep. N. S. 665.
    The civil code provides, that a disposal of property by will, exceeding the quantum of which a person may legally dispose, to the prejudice of forced heirs, shall not be void, but shall be reduced to the amount of which he may rightfully deprive such forced heirs. (Art. 1489.) This reduction is made by deducting the debts of the testator from the value of his property at the time of his death, and calculating what is called the “ disposable quantum,” or the remainder. Civ. Code, art. 1492. But these provisions seem to me to have no application whatever to a case like the one before me. The very mode pointed out for making the reduction, shows that a case like this was not within the contemplation of the lawgiver. The objection here is, that the will gives to the legatee a greater estate or property in the legacy itself, than is authorized by the laws of the testator’s domicil. If I correctly understand those laws, the only interest which a husband in such case can give the wife is an usufruct in a portion of his property, not to exceed one fifth. The legacy given in this case is one of absolute property in the thing given ; can the court undertake to change the nature of the legacy, by reducing it from one of absolute property to one of a mere usufruct ? or must the legacy fail altogether as an invalid disposition ? The law has furnished no mode for reducing an absolute gift of property or money into a mere usu-fruct in that property or money. Nor has the court any power to change the language of the bequest, so as to make it conform to the laws. This would be to make a new will for the testator. I am reluctantly forced to the conclusion, that the legacy is invalid, being interdicted by the laws of Louisiana. Nothing can be clearer upon principle, than that a provision in a will, which contravenes the provisions of a positive law, to which the testator was subject, cannot be enforced, either in the country where it was made, or elsewhere.
    I have felt great difficulty in coming to a satisfactory conclusion as to the law of this case; arising from want of acquaintance with the peculiar system of jurisprudence of the state of Louisiana, upon which a correct solution of the different questions so essentially depends.
    I shall be gratified to see it submitted to the judgment of the supreme court.
    Let the complainants’ bill be dismissed at their costs.
    From this decree of the chancellor, dismissing their bill, the complainants prosecuted this appeal.
    
      Montgomery and Boyd, for appellants.
    The residence of David Alexander, being proved to have been in Louisiana, the first question to be decided is, was the will made in Kentucky valid? The judgment of their probate court, ordering the will to be executed, would, as a general rule, be sufficient to establish that point; but the law of Louisiana on that subject is positive. Civ. Code of La. art. 1589. Wills made in accordance with the law of the state in which they are made are valid.
    The probate of the will in Kentucky authenticated according to the act of congress, is conclusive evidence that it was clothed with all the formalities required by the laws of that state. How. & Hutch. 388, s. 311.
    2. What is the effect of the will 1 It appears from the bill, answer and proofs, that Isabella Millikin was the daughter of David Alexander by a former marriage; and it is contended by the defendants, that, by the laws of Louisiana, Alexander was not at liberty to bequeath or donate to his second wife more than one tenth of his estate absolutely, or the usufruct of one fifth. Civ. Code, art. 1739; lb. art. 1745.
    Donations inter vivos, or mortis causa, cannot exceed two thirds of donor’s property if he leave one child, &c. Civ. Code, art. 1480.
    If this last article be regarded as the general rule, and article 1745 as the exception, and that it covers this case, then the complainants are entitled to the usufruct of the legacy, unless it exceeds the disposable portion ; but in that case it is not void, but only reducible to the disposable portion. Civ. Cod. art. 1489.
    The reduction to which the legacy is liable is ascertained by ascertaining the value of all the property the donor had at the time of his death, and deduct from this the account of his debts, and the disposable portion is calculated on the balance. Civ. Cod. art. 1492.
    If these rules be sustained by the court, the case must be referred to a commissioner to ascertain and report upon the amount and value of property left by David Alexander, and the amount of his debts ; and the complainants are entitled to whatever portion the testator was authorized to give, upon giving security to use the fund as a prudent administrator, and will fulfil all the obligations imposed by law, &c. Civ. Code, art. 551.
    If complainants cannot give security to the satisfaction of the court, then the fund must be lent out under direction of the court, and the interest paid to the usufructuary. Art. 556.
    As to the statute of limitations set up by defendants. — As this legacy was to be paid out of the proceeds of the sale of the property of deceased, it may be considered due and payable, at the time the last payment came due on that sale, which was three vears from the 28th December, 3831, say 28th December, 1834.
    The period of limitations prescribed by the laws of Louisiana, which bars a claim of this character, is ten years. Civ. Code, 3508 ; see art. 3499, 3503, 3505.
    A legacy is not limited by the common law.
    The question of the jurisdiction of this court is fully sustained by the admission of the answer and the proofs. The will is proved by the records of Concordia, La., and Adams county, Miss. The value of David Alexander’s estate, which came to the trustee, appears by the admissions of defendant, and the deed of trust filed with the bill. The value of the property which came to the hands of McAlister, as administrator, is shown by him to have been fully administered. And the release given by Millikin and wife to Alexander shows that the defendant Millikin and wife have all the estate of David Alexander, vested in Walworth as trustee for their use. Under this state of facts, the familiar principle, that equity will follow a fund into whosesoever hands it may come, and subject it to the payment of liabilities properly imposed on it, applies in full force. Story’s Eq. PI. 162 —167; 5 Cranch, 329,330; 1 Story’s Eq. 543 —545, 560.
    As to the question of interest. — If complainants are usufruc-tuaries, they are entitled to interest on the amount of the legacy or the disposable portion. Civ. Code, 540. The rate of interest is five per cent. (art. 2895,) from the time of demand.
    This legacy was demanded by suit against Thomas Alexander, the record of which is filed. Interest should run from that time.
    If the court be satisfied, from an examination of the proofs, that the testator did not exceed the disposable portion, there will be no necessity of a reference to a commissioner to ascertain that fact.
    As to the set-off claimed by defendant on account of advances made by Thomas Alexander. — If the deposition of Alexander is admitted to prove this account, which we contend cannot be, as he will derive all the benefit of the set-off, according to his own answer. But admitting his deposition, — and he expressly repudiates the notion that the account was created in discharge of the legacy, or intended as a part payment of it; on the contrary, he says he has claimed it as a set-off to a suit brought against him on his own note by Alexander Montgomery, as trustee for Mary Ann Montgomery. From his testimony the account was properly pleaded as an offset to the suit brought against him on his own account; but not content with that, he has interposed it as a set-off in one or two other suits. In this case, however, he is only to get the benefit of it personally, in the event it is allowed by this court.
    The chancellor decided that the testator, by the laws of Louisiana, could only give his last wife, by will, under the circumstances of this case, one fifth of his estate, and only the, usufruct of that; and as the will purported to give five thousand dollars absolutely, and not a usufruct, it was void, and nothing passed.
    We conceive the I492d article of the civil code of Louisiana does not bear the construction given by the chancellor. Our view of that article is, that it only prescribes the mode of ascertaining the value of the disposable portion, where that is doubtful, but does not, as the chancellor has assumed, limit the disposable portion to such cases only, and prevent the donee from claiming a less estate than that specified in the act of donation. The precise language of the Louisiana law is, “Any disposal of property whatever, inter vivos or mortis causa, exceeding the quantum of which a person may legally dispose to the prejudice of the forced heirs, is not null, but only reducible to that quantum. Civ. Code, art. 1489.
    Now the decision of the chancellor limits the meaning of the word quantum to the value of the disposable portion; and considers the art. 1492 prescribes the only mode of reducing the donation to the disposable portion ; and that, as the donation in Alexander’s will is an absolute gift, it cannot be reduced to a usufruct.
    
    The word quantum signifies quantity, amount. Quantity is defined by Webster to be, that property of anything which may be increased or diminished. In music it means the relative duration of a note or syllable. And we would suggest that in law, when applied to estates, it means the duration of an estate, as well as its magnitude or value. Blackstone, in his chapter on Estates of Inheritance, divides the subject into three parts., the first of which is quantity of interest, which he s.ays is measured by its duration and extent. It is to subsist during his own life, or the life of another person; to determine at his own decease, or to remain to his descendants, for a certain number of years, months, &c., or for an indefinite period. 2 Black. Com. 103. From this it is plain the word quantum, as used in the article 1489, includes not only the value of the donation, but the duration and extent of interest. A usufruct is of the same nature as a life estate at common law.
    Upon common law principles we contend the chancellor was wrong in declaring the bequest void, because on the face of the will it purported tobe an absolute gift, when the donor was .only authorized by law to bequeath the usufruct. As a general rule, when a grantor conveys a greater estate than he possesses, unless such conveyance operates as a forfeiture, it is good for such estate as the grantor has, and not void. The construction of wills is more liberal. The meaning of the testator must govern if it can be ascertained; and if it be susceptible of two constructions, one in consonance with law, and the other contrary, the former shall be preferred. And courts always prefer a construction which will give effect to the will, to one which defeats it. 2 Black. Com. 380 ; Co. Lit. 42, a. And too much stress must not be laid on the precise signification of words. 2 Bl. Com. 379, 381.
    In construing statutes, the court must take into consideration the whole act; and if, in some of the enacting clauses, expressions are found of more extensive import than in others, the court will give effect to those expressions. 14 Eng. Com. Law Rep. 108; 7 B. & Cres. 643; 1 M. & R. 600.
    When a general intention is expressed, and the act expresses also a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception. Churchill v. Crease, 2 Moor. & P. 415; 3 Monroe R. 80; 5 Bing. 177, 180.
    Now to apply these rules to the construction of the articles 1489 and 1492, and we conceive it is manifest that 1489 expresses the general intention, and 1492 the particular intention, and both can operate without confliction in cases to which they are respectively applicable. There was no necessity for any specific rule for reducing an absolute donation to an usufruct, and therefore there is no rule. The court, in making its decree, can limit the interest which the donee shall take and enjoy, as well when that interest is limited by the law, as if it were limited by the deed or will by which it is conveyed.
    Again, a usufruct may be limited to any period the donor may choose; but if no time of duration be specified, it will continue during the usufructuary's life. Civ. Code of La., art. 601.
    When general expressions show the intention of the testator to give all the interest possessed, the court will give effect to such intentions, although it contradict the words of the bequest. Matthews v. Maud, 1 Russ. & My. 397; or 4 Eng. Ch. Rep. Cond. 484.
    Gr. Winchester, for appellees.
    1. Have complainants proved or shown that Mrs. Montgomery is a legatee by a last will and testament of David Alexander, duly executed and proved ?
    The probate of the will is denied. The only evidence of a last will and testament, produced in the cause, is the transcript from the records of probate in Adams county, of the transcript from the records of Woolford county, Kentucky, of a paper purporting to be the last will and testament of David Alexander, produced and proved as such in said Woolford court, and admitted to record in Adams county, and a similar transcript admitted to record in Concordia.
    David Alexander was merely travelling in Kentucky, having no estate there. His residence was in Louisiana, and his estates lie in Louisiana, in the parish of Concordia, and in Natchez, Adams county, in Mississippi, and his executor resided in Ohio. It does not appear by whom the paper was produced as a will. What jurisdiction had the court of Woolford county to take probate of this will ? The heir of David Alexander, an infant, surely cannot be bound, or even affected in her rights, by proofs taken to establish a will taking away five thousand dollars from her inheritance in a court in a distant state from where her father resided, or where his property lies. No one can be visited with the consequences of presumed notice to all the world, that a will would be produced in, the court of Wool-ford county for probate, and that all persons interested must appear in that court to contest the will. If that court had jurisdiction to take probate of the- will, so that a mere transcript from its records of a copy of the will and probate, should admit it to record in Mississippi and Louisiana, and a transcript of that transcript of a copy be received as conclusive evidence in all other courts, then every probate court in the United States had the same jurisdiction, and the will might be proved in any court. If that court had no jurisdiction of the probate, then the admission of its transcript to record in the courts of Adams and Concordia is a nullity, and complainants have produced no evidence of a last will and testament.
    The probate court in Concordia, at the domicil of the testator, had the original and principal jurisdiction of the probate of the will and administration of the estate. Even if any jurisdiction existed in the Kentucky probate court, it was only an ancillary jurisdiction, and our statute and the statute of Louisiana, authorizing the transcript of the probate of a will in another state to be received and admitted to probate in Mississippi and Louisiana, mean a transcript from the probate court of a state having the principal jurisdiction, and not of a state having merely ancillary jurisdiction. The will should therefore have been produced and proved originally in the Concordia court, and not in the Kentucky court.
    2. But suppose the will sufficiently proved. The legacy is a pecuniary legacy, to be paid by the executor “out of his portion of the sales.” Out of his portion of what sales 1 Of the sales of his property, real and personal, in Louisiana, or of his property in Mississippi %
    
    His property in Mississippi was lands only, being three town lots, sold by McAlister on a credit for §2435. If it was not the intention of the testator that the §5,000 should be paid out of his portion of the sales of the Mississippi lots, then the validity and effect of the legacy will not be governed by the laws of Mississippi, but will depend solely upon the laws of Louisiana, (unless Kentucky laws can come in for a share because the will was proved there.) If it was intended the legacy should be paid out of his portion of the sales of property both in Louisiana and Mississippi, then a question may arise, whether the legacy is to be governed by the laws of Louisiana alone, as being the place of his residence, or to the extent of the value of the lands in Mississippi, by the laws of Mississippi also.
    By the article 1745 of the Louisiana code, “A man or woman who contracts a second marriage, having children by a former one, can give to his wife, or she to her husband, only the least child’s portion, and that only as an usufruct; and in no case can the portion of which the donee is to have the usufruct exceed the fifth part of the donor’s estate.”
    “ The word children used in the article applies to the.case where there is only one child.” 9 Dur. 826.
    Being entitled to the usufruct only, she can only claim the interest according to article 566 of the code. All the property of David Alexander, at the time of his death, consisted of lands and slaves, or what is there denominated immovables.
    According to the law of Louisiana, therefore, David Alexander was expressly prohibited from bequeathing or giving to his wife more than one fifth part of his estate, “ and that only as an usufruct,” he having a child, Mrs. Millikin, alive by a former marriage at the time of his death. As the value of his estate did not exceed §10,000 at the time of his death, and as he could only give at the most §2,000 in usufncct, the gift of §5,000 is clearly void as to his estate situated in Louisiana.
    If we consider the proceeds of the sale of the lots in Mississippi as personalty, and as attracted to his domicil, the same as if the land had been personal property, the gift is still void under the laws of Louisiana. This last remark is made upon the supposition the testator’s intention is construed to mean, that the $5,000 should be paid out of the sales of Mississippi and Louisiana property together, in which case it must be construed as his intention, that his executor should bring the proceeds of the sale of those lots into the general mass of his estate at his domicil in Louisiana, in which case the law of Louisiana would govern as to the validity of the legacy or donation, in relation to proceeds from the sales of Mississippi property, as from the- sales of Louisiana property.
    It is very clear, therefore, that, as to the funds received or secured under the trust deed, in Walworth the trustee, on account of the estate of David Alexander, situated in Louisiana at the time of his death, complainants have no claim on Milli-kin and wife, or her trustee Walworth, for the legacy, even if the will is proved. And, as it is admitted throughout the pleadings, that neither Millikin and wife, or their trustee, have ever received any portion of the estate in Mississippi, complainants have no claim upon them.
    2. Then as to the lots in Natchez. Did the testator direct their sale for the payment of all or any portion of this legacy ? Did he intend to charge the legacy upon these lots 1
    
    His language is, “ Out of my portion of the sales I wish $5,000 to go to my wife Mary Ann.” He had before desired that his brother Thomas Alexander and his wife should unite with his executor in permitting their joint interests in all the Louisiana property to be sold, and his executor is directed to sell absolutely, and has no discretion. But as to the Mississippi lots, he does not direct his executor to sell and request his brother Thomas to unite in the sale; but his language is, “The Mississippi .property I wish to be sold by my executor, at his own discretion.” After which he says, “ The Ferry property I wish also to be sold on the same terms as the Louisiana property; out of my portion of the sales I wish $5,000 to go to my wife,” Literally, “outof my portion of the sales,” can only apply to sales of the property in Louisiana, because if those sales were made according to his directions and wishes, to wit, by a joint sale of his brother’s and wife’s interests, only a portion of the sales would be his. Whereas the whole, and not '■'■only a portion of the sales ” of the Mississippi lots would be his. Again, he leaves it at the discretion of his executor to sell the property in Mississippi. Evidently contemplating that if it would be for the benefit of his heir not to sell the lots in Natchez, but to permit them to remain unsold, that he should have the discretion to do so. Suppose William Alexander, of Ohio, had acted as executor, and, in the exercise of his discretion, had thought proper never to exert the bare naked authority he had under the will to sell these lots; would this court have thought these lots so clearly charged with the payment of this legacy' by the language of the will, as to have considered itself clothed with authority to compel him to sell the land for the express purpose of paying this legacy, and, as such, held him as a trustee bound to sell for that purpose'? As there was no personal estate in Mississippi, and as the lands here descended to the heir, the language of a will must be very clear and explicit, which will disinherit an heir in favor of even a devisee, much more of a pecuniary legatee seeking to divest him of the inheritance by a charge of the legacy upon the land.
    But suppose the will be construed to intend, that the lots in Mississippi should be sold to pay this legacy, and that the testator intended to charge them with the legacy, when are the lots to be sold for that purpose, and when is the legacy payable 1
    
    However this may be, complainants do not claim the payment of the legacy as a charge upon the lands as against the heir. Such are not the statements and shape of his bill.
    He claims that McAlister shall account and pay out of the proceeds of the sale of these lands; and McAlister answers that he has settled his final account with the probate court,, upon which final account the estate is in his debt, and that he has been discharged from the administration. According to the decision of the high court of errors and appeals in Vertner v. McMurran, this would be conclusive. But I do not appear for McAlister. I represent the interests of Millikin and wife, and their trustee alone in this matter. If their interest in the lots have been' sold by McAlister with lawful authority, and he has received the proceeds ¡charged under the will with the payment of this legacy, which is the attitude of the case as presented by the complainant in his bill, then Millikin and wife have no interest in the controversy, and can in nowise be made a party to or be bound by any decree made between complainants and McAlister.
    We deny that McAlister had any authority to sell the lots, and convert them into money. The will, if proved, only conferred a naked power or authority to sell upon William Alexander, and at his discretion. The authority is not coupled with an interest. No devise is made of the lots to any one. They descended to the heir; neither the naked authority, and much less the discretion, were vested in McAlister by the grant of letters testamentary with the will annexed; Whether the sale by McAlister to Beaumont and Thomas Alexander is valid or not, cannot be decided in this suit. The proper parties are not before the court, nor is the case before the court. It may hereafter be tried in an action of ejectment in another court. Or even if it were competent to decide it in this- case, and make a decision to bind the heir and executor and the purchasers, there is no evidence under what authority the land was sold, whether by order of court, on application of creditors, or legatees, or at the mere discretion of‘the administrator under the will.
    Complainants claim by the prayer of the bill to compel Milli-kin and wife and their trustee to come to a joint account with McAlister of the amount due on the legacy to complainants, and that-the assets in the hands of McAlister may be first applied to pay, the legacy, and that the residue shall be paid by Millikin and wife and their trustee.
    Suppose this allo wed. The court decrees that the lots are directed to be sold, and the proceeds to be first applied to pay this legacy according to the directions of the will; that, pursuant to the directions of the will, McAlister has lawfully sold the lots; that there now remains in his- hands of the proceeds of said sale,, say nothing, or $2,000, or'the estate is in his debt; that said proceeds now in his hands shall be paid by him in part discharge of the legacy; that, upon the balance of the legacy, it is either void or a usufruct.
    
    If upon the case now before the court, the heir (Millikin and wife and her trustee) can be made a party jointly with the administrator with the will annexed, the statutory executor, McAlister, to such a decree, then such decree must conclude the right of the heir hereafter to contest the authority and validity of the sale of the lots by McAlister; and thus the title of the heir to these lots, as against Beaumont and Alexander, will be collaterally determined in this suit against an executor for a legacy, to which Alexander and Beaumont are not even a party, and who have the full benefit of the decision if it is in their favor, and are not at all bound by it if against them.
    ■ If these lots had never been sold, and complainants had filed their bill against the executor for the legacy, and had stated that the legacy was a charge upon the lots, and a power vested in the executor to sell to satisfy the legacy, and a prayer to compel the executor to sell and pay out of the proceeds, perhaps the heir should have been made a party to such a suit. But here, where it is alleged the lots have already been sold, and the interest of the heir at an end in the lots, and the proceeds of the sale in the hands of the executor, and a prayer to compel him to apply the proceeds to the legacy; it is difficult to perceive how the heir can be made a party to such decree, any more than if the legacy had not been payable out of the proceeds of the land of the heir, but had been payable out of personal property in the hands of the executor; for the lots are already converted into personalty.
    Unless indeed the heir is made a party for the express purpose of compelling her either to admit the validity of the sale of the lands by the executor, and the right of the executor to apply the proceeds to pay the legacy, or else to contest the validity of the sale with Beaumont and Alexander, the purchasers, and to contest the right of the executor to pay the legacy out of the proceeds, with the executor; clearly, the legatee, in pursuit of his remedy against the executor for his legacy) has no right to raise these controversies between the heir and the purchasers under the executor, and between the heir and the executor, and have them settled in this suit. If the lots have been legally sold, then the proceeds are personal assets in the hands of the executor to pay debts and legacies charged with such payment. As well might any creditor, seeking to compel the executor to pay debts out of the proceeds of the sale of the lots, bring in the heir as-a party to an account between the creditor and executor, and have the validity of the sale of the lots tried between the heir and purchasers, and have the right of the executor to pay debts, with the proceeds of the sale, if valid, tried between the heir and the executor. The truth is, the heir has nothing to do with suits between creditors and legatees and the executor for their legacies and debts, unless where it becomes necessary to make the heir a party, in order to subject lands to sale for the payment of debts and legacies. Creditors and legatees are in this respect both on a footing; indeed legatees are creditors.
    Perhaps where an executor is sued by creditors or legatees for the payment of debts .or legacies, and the assets in his hands are funds derived from the sale of lands, and the executor discovers or apprehends that he has made an illegal and void sale of lands, that he might file his cross-bill to compel the heir and purchaser to try the validity of the sale, and stay the proceedings of the creditor or legatee, until, the validity of the sale between the heir and purchaser should be tried at law, in order to have it determined whether he should pay back the purchase-money to the purchasers, on account of its being paid on a void sale, or whether he could safely pay it as assets to the creditor or legatee.
    Perhaps, too, an executor having power to sell lands of the heir, and having sold, and a legatee claiming the proceeds as charged with payment of the legacy, the executor doubting or disputing such right of the legatee, might by cross-bill bring in the heir to contest the right of the legatee.
    And perhaps, too, purchasers at an executor’s sale, having paid the executor, might, upon a doubt as to the title, file a bill to compel the heir to try his title at law, and enjoin the executor from paying the proceeds to creditors or legatees in the mean time.
    If any or all of such remedies would exist in favor of executors, or purchasers under executors, it gives no right to creditors or legatees seeking to recover debts or legacies, to make heirs, or purchasers under executors, parties defendants with the executor, in order to compel them to raise and settle all such questions, or forever after hold their peace.
    At the instance of complainants’ legatees in this case, this court cannot direct a suit at law to try the validity of the executor’s sale of these lots between the heir and the purchasers, when it is neither asked for by the executor, or purchasers, or heir, and when the purchasers are not parties.
    In conclusion. Complainants are entitled to no decree against Millikin and wife, and their trustee, Walworth; —
    1. 'Because it does not appear that the probate court of Wool-ford county, Kentucky, had any jurisdiction to probate the paper produced before it as a last will and testament of David Alexander, and the heir is no party to the proceedings in said court, either by actual or constructive notice, and the probate is a nullity as against the heir; but the jurisdiction to probate the .will belonged either to the parish court of Concordia, where Alexander had his domicil and principal estate, or to the probate court of Adams county, where part of his estate is situate.
    The probate in Woolford county being a nullity, the transcript pf the record of that probate was also a nullity, and was unlawfully admitted to record in the probate courts of Adams and Con-cordia, and a transcript from the records in Adams and Concor-dia of such transcript from the record in Woolford county is a nullity, and is no evidence in this suit, as against Millikin and wife and their trustee, that complainants- are entitled to any legacy ;
    2. Because the transcript admitted to record in Adams county and Concordia parish, if not a nullity for want of jurisdiction in the Woolford court, is not such a transcript and record as could be admitted to record under our statute and the laws of Louisiana.
    
      3. Because the original transcript from Woolford county should be produced, and a mere transcript of the record of a transcript, which is the copy of a copy of a copy of the original will, that is a third copy, is not sufficient evidence. In this case, the mere punctuation in the last clause quoted might go far to show the intent of the testator. »
    There is no evidence that the executor ever renounced, and the record must show the renunciation, or the court had no authority to appoint administrator with the will annexed.
    4. If the will giving the legacy is sufficiently proved, the legacy of,|5,000 is void under the laws of Louisiana, where the testator had his domicil, where his principal estate was situate, and where the proceeds of the sale of the property was charged with the payment of the legacy, according to the express language and evident intent of the will, and where, instead of charging the estate descending to the heir with a payment of $5,000, the testator is prohibited from giving more than a mere usufruct of one fifth.
    
      5. No part of the legacy was charged upon the proceeds of the sale of lots in Mississippi. Complainants claim the whole legacy as a charge upon the proceeds of the sale in Mississippi; but by no possible construction can this be maintained. If charged in part upon the sale of the lots in Mississippi, how large a part is so charged ? When was such part payable, and when must the lots be sold to pay ? Before or after the heir should come of age ? Could the heir have the privilege of paying off such portion, and preserving the lots? Situated in a growing city, they might become very valuable by the time the minor came of age. What was the executor’s discretion ? Was it to sell, or not to sell? Was it to sell at such time as executor might choose, or at such time as legatee might require, without regard to the interests of the heir? Do not the rules of construction require that the intent must be clear and manifest, to disinherit the heir, in favor of a devisee, and much more of a pecuniary legatee? Even if the authority were transmissible, was the discretion also transmissible by appointment in the probate court ?
    6. The suit, as to property in Mississippi, is by the legatee against the executor for proceeds already in the executor’s hands from a sale of the lots, and not against the heir for a charge of the legacy upon the lands.
    It is not pretended that the legacy is charged upon the lands in the hands of the heir; but the pretence is, that the legacy is chafged upon the proceeds of the sale of the lots in the hands of the executor, under a naked authority to sell the lands for that purpose, and it is alleged the executor has already sold the lots and received the proceeds. The suit therefore, as to property in Mississippi, is a suit by the legatee against the executor for the proceeds of the sale of lots in the executor’s hands, charged with the payment of the legacy.
    The heir in this case, and her husband and trustee, cannot be made a party to any decree between the legatee and executor :
    1st. Because she denies the authority of the statutory executor to sell the lands for this or any other purpose. The will gives him no such power, it containing a mere naked power or authority to sell, not coupled with an interest, and its exercise being left to the discretion of another. She therefore sets up no claim to the proceeds of the sale, which is the subject of the suit between the legatee and statutory executor, and there is no controversy between them, in which her rights or interests can in any way be settled or adjudicated in this suit. No other authority than that contained in the will is shown, and if that contains no authority, then she has no controversy as to the proceeds of the sale, and can be made a party to no decree touching the proceeds.
    2d. Because she denies that the legacy is a charge on the proceeds of the sale of the lots. If she chooses, she may hereafter affirm the sale of the lots by the executor, notwithstanding his want of authority, and claim the proceeds of the sale. ,
    This might give the executor a right to file a bill of inter-pleader between her and the legatee, to ascertain who was best entitled to the proceeds, in which, if she chose to disclaim all title to the proceeds, and sue for the lots because sold without authority, she might do so; but this can give no right to complainants to make her a party.
    
      3d. But even if she could be made a party, she has denied both the authority of the executor to sell her lots, and the right of the legatee to have the proceeds of the sale. There is no evidence that the executor had authority to sell, and if the chancellor, in this suit of a legatee against an executor, for a legacy claimed as payable out of the proceeds of lands lawfully sold by the executor, can permit the heir to be made a party, and upon denying the legality of the sale, and at the final hearing determine whether the sale is legal or not, upon the evidence in this case, the decision must be that the sale is illegal. The chancellor cannot make a decree that the proceeds of this sale shall be paid to the legatee, and so make the heir a party to such decree, as to affect her right to bring a suit for the land, and recover her inheritance if sold without authority. Nor can the chancellor direct a suit at law between the heir, and Beaumont and Alexander, the purchasers of the lots, or whoever may be purchasers under them, because they are not before the court. For if this could be done, if the heir can be made a party defendant to a suit by a legatee against the executor, then, in all cases of suits by creditors for moneys in the hands of executors, the proceeds of the sale of lands, the suit may be brought against the executor and heirs; and if the heir dispute the executor’s or administrator’s authority to sell, the purchasers, or whoever may have become owner of the lands under the executor’s title, must be brought in to try the validity of the sale.
    No decree can therefore be rendered against Millikin and wife and their trustee, in this case, and, as against them, the bill must be dismissed with costs.
    Whether any decree can be rendered against the administrator, McAlister, is a matter in which they decline taking any part, as they conceive no decree, for or against him, can affect their rights in this or in any other suit.
    The question, between the heir at law and the step-mother, is, has the testator given to the step-mother any usufruct in his estate 1 If a usufruct is given, and does not exceed the one fifth of his estate in tisvfruct, then the mother is entitled to the usu-
      
      fruci given. If a ti.su/ruct is given, and it exceeds the one fifth to which the power of the husband to give is limited; then the quantum of usufruct may be reduced by the court to a gift of one fifth “only in usufruct;” and it is a good gift for that quantum in usufruct by express law, notwithstanding such excess.
    But there is no express law which says, if he has given the thing or money, and not the usufruct of the thing or money, that the court may convert the value of the thing or money into an equivalent value of the thing or money in usufruct; and that it shall be a good gift of such money or thing converted into a usufruct, if it do not exceed the quantum of such usu-fruct allowed; and if it do exceed it, the quantum to be reduced by the former express rule.
    For example, if he make an absolute gift of ten negroes, and such gift shall be found, by annuity tables, or by a positive rule in the code, equal to a usufruct in twenty slaves, and such usu-fruct in twenty slaves exceed the quantum of one fifth of his estate, by five slaves ; there is no express law which will give a usufruct to the wife in any fifteen slaves the testator owned.
    There is an obvious reason why there should be an express law, allowing the quantum to be reduced when it exceeds the one fifth to which the power to give is limited; and yet no such express law, allowing the gift of a thing or money to be changed into a gift in usufruct, to which the power to give is also limited. The testatator might easily mistake the quantum he had power to give, as to the matter of fact; because it would depend upon the value of his estate, which is fluctuating. The law, therefore, if he exceeds the quantum, will not suppose he intended to give a greater quantum than he had a right to give; but that he mistook what was, in fact, the one fifth of his estate. It declares, therefore, it may be reduced to the proper quantum, upon a reasonable presumption that the intention of the testator was to give one fifth only.
    But no such mistake, in fact, of a thing, for a usufruct of the thing, is supposed by the law, nor could it reasonably be supposed, and therefore no such positive rule for converting a thing into usufruct, and then declaring such gift of the thing good for such usufruct, is contained in the law.
    The question then turns wholly upon the intention of the testator. Was it the intention of the testator to give the wife a usufruct 7 If so, what usufruct did he intend to give ? Was it a usufruct in one fifth, or in more, or less, than one fifth of his estate 7 All testamentary dispositions and gifts of property in Louisiana, whether absolute or in usufruct, must be by will in writing, authenticated by the formalities required by the laws of Louisiana. No such gift is valid, unless evidenced by such written will. Gaude v. Baudan, 6 Lou. Rep. 722.
    Dispositions by will, therefore, are regulated in Louisiana by laws of the same character with laws passed in all the other states in the Union ; and the rules of interpretation there are the same as in all the other states. If the written will do not give, the court cannot.
    How is this court to ascertain whether a usufruct is given by this will? The answer is by ascertaining from the will itself, whether it was the intention of the testator to give a usufruct.
    
    In 3 Pet. Rep. 145, 146, Ingles v. Trustees of Sailors’ Snug Harbor, Story says: “ This court is to look into the terms of the will, and to construe it according to the intention of the testator. That intention has been justly said to constitute the pole star to guide courts in the exposition of wills. When the intention is once fairly ascertained, it is wholly immaterial, that it cannot be carried into effect by the principles of law; for our duty is to interpret, not to make wills for testators.”
    Applying this rule to the will of Alexander in this case, is there a word or clause in the will to show he intended to give $5,000, or any other sum, in usufruct? Is not the plain, unambiguous words of the will a gift of $5,000 absolutely? Is not that what he intended? and can that intention be carried into effect by the law of Louisiana? Had it never been objected by the heir at law that the gift of $5,000 is void because the testator had power to give “ only an usufruct’’ would it have been contended by the step-mother that the testator intended only a usufruct ?
    
    
      “It plainly was not the intent of the testator to give $5,000 in usufruct, and his intention must govern, if by law it may,” says a distinguished member of the Louisiana bar. But he also says, “ A gift of an absolute sum may be compelled and decreed in usufruct, if such be the intention of the testator.” He thinks the limitation upon the husband’s power to give, by the words, “shall not exceed the least child’s portion, and that only in usu-fruct," applies only to the amount by which he is limited in the gift, but not to the character of the gift.
    The limitation is equally upon both, or else he may give the thing itself, and is not confined to the usufruct, if he do not exceed the amount. A power to give the thing will include the power to give the usufruct; but a power to give the usufruct will not include the power to give the thing.
    But with these doubts of the correctness of his interpretation of the article, we may admit that if “it was the intention of the donor to give $5,000, as a mode of expressing his intention to give that sum, or a greater or a less sum in usufruct, that then she is entitled to the usufruct which he intended to give. But we are left still to explore this intention of the testator, the pole star to guide the court in the exposition of the will. Can anything be found in the written will, (which by the law of Louisiana is made the only evidence of the testator’s intention) showing that he intended the gift of five thousand dollars, as a mode of giving that or any other sum in usufruct ?
    Suppose the testator had, in presence of the witnesses to his will, calculated by annuity tables what sum in usufruct would be equal to an absolute gift of five thousand dollars, and declared he intended the absolute gift of five thousand dollars as a mode of giving such sum in usufruct, could the evidence be admitted aliunde the will, to establish such intention of the testator 1
    
    It is sufficient, however, to say there is no such evidence, in or out of the will, and it was the plain manifest intention of the testator to give her five thousand dollars; which intention, under the laws of Louisiana, cannot be carried into effect but by changing the gift from an absolute gift of five thousand dollars into a gift of some other sum in usufruct; which other sum in usufruct the court will give, and not the testator by his written will, if it is given at all by a decree.
    But it is said the civil law rules of interpretation are different and more liberal, according to Domat, and to annotators on the Napoleon Code. That these limitations upon the power of the husband to give, and upon the evidence of his intention, to wit, the written will, do not extend to the rules of interpretation, and that these rules will presume the husband was ignorant that the law limited him to a gift in usufruct, and will, therefore, by interpretation and construction, deprive the heir at law of his inheritance, and give the wife a usufruct, (which the husband, if he had known the law, could have given in usu-fruct,) by converting the gift of five thousand dollars into a gift of ten thousand dollars in usufruct.
    
    Admitting these rules of interpretation and conversion to be correctly stated, under the civil law and the Napoleon Code, do they exist in Louisiana ? 1 La. Rep. 161. If they do, they repeal their laws declaring, that all testamentary dispositions shall be by will in writing, with the requisite formalities.
    Ignorance of the law cannot be set up as a foundation for any such rule of interpretation in Louisiana, since it became a state; as the people there are the law-makers, and the law never presumes them ignorant of the law, nor does it adopt rules of interpretation founded upon such supposition.
    It must be recollected this is a contest between the heir at law and the step-mother. Any construction or interpretation upon this will, to follow the law of Louisiana, must favor the heir at law rather than the step-mother. The rule that the heir is not to be disinherited by construction or implication of law, is strictly applicable.
    For the laws of Louisiana not only give the heir the inheritance when no will is made, thus showing that the heir is preferred to the step-mother, but it guards against the husband’s being influenced by his wife, in giving the inheritance by will away from the heir. Unless the testator then has, by the plain intention on the face of the will, legally given the five thousand dollars to the wife in usufruct, the court are not to favor her against the heir, by a resort to construction or implication of law. See 2 Yes. Sen. 164. 4 Brown’s Ch. R. 534. 11 Yes. Jr: 91 2 T. R. 224. 3 Atk. 747.
    But upon this question we have still higher authority of the rules of interpretation and construction, which govern in Louisiana upon wills. We have the authority of the supreme court of Louisiana itself, in the case of Theall v. Theall, 7 La. R. 226, which accords fully with the rules laid down by Judge Story, in the case quoted from 3 Peters, 145 and 146. 1 La. R. 162. 8 La. Rep. 46.
    Judge Martin, who delivered the opinion of the court, says, “ A testator is presumed to know, that his own property alone can be disposed of in his will.” So here, too, the testator is presumed to know a usufruct alone could be disposed of in his will.
    He is not presumed ignorant, that by law he can give only in usufruct, nor on account of such ignorance, or supposed mistake of the law, is it anywhere provided in the code, that his gift of five thousand dollars shall be converted into a gift, of that value in usufruct, and that it shall be a good gift for such usufruct. See also Poydras v. Poydras, 1 La. R. 161, 162.
    Martin further says : “ The intention of the testator must be sought in the words he has used in the will, and not aliunde. Constructions and interpretations are not to be resorted to, for the discovery of the testator’s intention, when he has used none but plain unequivocal words. Candles are not to be lighted when the sun shines brightly.”
    Such are the rules in Louisiana. Applying them, it is manifest that the intention of the testator was, to give five thousand dollars absolutely. This will, mind, or intention of the testator to make an absolute gift of five thousand dollars to his wife, cannot be carried into effect by the laws of Louisiana. In lieii of this gift of five thousand dollars which the testator intended, can the court give her a usufruct of any kind, which the testator has shown no intention in his will to give ? Not if, as Story says, his intention is the pole star to guide the court; and if that intention cannot be carried into effect, “ that the court sit to interpret and not to make wills ” for the testator. Not, if “ candles are not to be lighted when the sun shines brightly.”
    Nor can the doctrine of cy pres be applied, to make the gift of five thousand dollars a good gift for the usufruct of five thousand dollars, unless the testator intended it as a gift of such usufruct. 1st. Because the law of Louisiana requires, that it shall be the written will of the testator which shall make any gift out of the inheritance of the heir valid, as against the heir, to whom the law gives it; and the intention of the testator, evidenced by his legally executed will, can alone give a usu-fruct.
    
    
      2d. Because implication of law and construction cannot take away the legal inheritance from the heir, where there is not the plain intention of the testator to give such usufruct.
    
    3d. Because there is no express provision of the code declaring that if he exceeds his power, by giving the thing or money, in violation of the law, it shall still be a good gift to the extent of his power to give, to wit, for the usufruct. While there is an express provision if he exceeds his power, by giving a greater quantum, it may be reduced, because the law reasonably presumes no violation of the law in giving such excess, but merely a mistake in the fact. See 1 S. & M. Ch. R. 499.
    The intention of the testator is the pole star to guide the court in its interpretation, and when that intention is ascertained, it must govern whether it can be enforced or not. Construction and interpretation are not to be resorted to if the words are plain, and the court are to look to the words of the will to ascertain the intention, and not aliunde. Candles are not to be lighted when the sun shines brightly.
    Such is declared to be the law, as to the interpretation of wills in Louisiana, by its supreme court.
    By these rules the intention of the testator was to give five thousand dollars, and not to give the usufruct of five thousand dollars. His gift of five thousand dollars cannot be carried into effect. The intention of the testator cannot prevail. His intention on the face of the will was, not an intention to give a usufruct in five thousand dollars, but plainly to give five thousand dollars.
    Can the court, then, by the doctrine of cy pres, give a usu-fruct by construction and implication of law, when the testator intended the five thousand dollars, and not the usufruct, without carrying into effect a different intention from the testator’s, and making a will for him giving a usufruct, when the law says no gift shall be valid but one made by himself, his last will and testament. Can the court resort to such construction and implication of law, to make this gift of the five thousand dollars, according to the intention of the testator, a gift of a usufruct according to the doctrine of cy pres, but not according to the testator’s intention, clearly expressed in his will % Can they do this to favor the step-mother, against the legal heir ?• If so, cypres does not follow the law, but overthrows the statute of wills, and makes a gift of a usufruct valid, which the statute says shall not be valid, unless the testator by his will intended a gift in usufruct.
    
    Such was the opinion of Judge Story and Chief Justice Marshall upon this doctrine of cy pres, in the case above cited in 3 Peters. Such too is the doctrine of the supreme court of Louisiana, in Theall v. Theall, also cited.
    It is impossible for this court to decree a tisufruct of five thousand dollars to the wife, without making a gift, which upon the plain unambiguous words of the will, the testator never intended to make. It is impossible to do it, without construing the heir out of an estate which the law gives him, and setting up the construction of the law and the implication of the law against the law itself, which gives him the inheritance, in order thus to favor the step-mother and deprive the heir of his inheritance.
    The laws of Louisiana make ample liberal provisions for the wife, without constructions in her favor to encroach upon that which the law gives the heir. To conform to the spirit of their law, when a claim upon the legal inheritance of the heir is set up, the construction of law is always in favor of the heir, or else law and implication of law are antagonistical. 1 Ves. & Bea. 466. 1 Black. Com. 453, n. 2 Black. Com. 381, n. Chitty’s ed. 2 Ves. Sen. 164. 11 Ves. 91. 3 Atk. 747. 2 T. R. 224. 3 East, 521. 4 Brown’s C. C. 534.
    To conclude, it is believed these propositions are established:
    That if it was the intention of the testator to give his wife a usufruct in five thousand dollars, or in any greater or less sum, and the sum which he intended to give in usufruct does not exceed the one-fifth he is allowed to give, the wife is entitled to it. So too if it exceeds, the amount he has power to give in usufruct, it may be reduced to the disposable amount, by express provision in the code.
    That if he intended to give five thousand dollars absolutely, and neither intended to give a greater or less sum in usufruct, his intention cannot be carried into effect by a decree for the five thousand dollars.
    That his intention is to be ascertained from the will itself, and not aliunde, and that construction and interpretation are not to be resorted to if he has used none but plain unambiguous words to express his intention; because the law requires all testamentary gifts to be evidenced by a legal written will of the testator himself, and because such are the rules of interpretation laid down by the supreme court of Louisiana.
    That according to this law and these rules of interpretation, the testator clearly intended an absolute gift of five thousand dollars, and this his intention cannot be carried into effect.
    That the law gives this inheritance to the heir, and all construction must favor this gift of the law to the heir, and by no construction or implication of law in favor of the wife can the plain intention of the testator to make an absolute gift of five thousand dollars be changed by the court into an intention to give a usufruct, upon the doctrine of cy pres, so as to deprive the heir of any portion of the inheritance the law gives her.
    That to do so would be to make a gift in usufruct, for the testator, by construction, which the testator never intended to give, so far as evidenced by his written- will, and it is the duty of the court to interpret and not to make wills.
    That consequently no part of the inheritance giren by the law of Louisiana to the heir, can be decreed to the wife in usu-fruc(, under the written will of the testator, if his intention is to be the pole star to guide the court in the exposition of the will, and if candles are not to be lighted when the sun shines brightly, to ascertain that intention.
    By reference to authorities it will be seen that the doctrine of cy pres is only used to change- or supply an intention, by construction of law upon wills to the disinheritance of the heir at law, in cases of public charities; and that its origin in the civil law had regard only to charities, and not to bequests to- private uses, and that it cannot be applied to> the latter, even to change the mode of carrying into effect a general intention, where such general intention appears. See- 4 Wheaton, 1, and Appendix, 10. 3 Peters, Appendix, Story’s opinion. Whitev. White, 1 Brown’s Ch. R. 14. Moggrege v. Thackivell,. 7 Tes. R. 68, 69.
    2d. By looking into the evidence in this cause, it will 'be found five thousand dollars in usufruct greatly exceeds the amount or quantum the testator has power to give in usufruct, and that the five thousand dollars is charged wholly upon im-movables descended to the heir. See Story’s Conflict of Laws, p. 466, § 554, 555-. Also 492, § 586. Also 398, § 474, 475, 477, 479, 445.
    Has this court jurisdiction over bequests, when they respect immovables, in Louisiana 7 § 479.
    Can they ascertain the portion the testator would give in usu-fruct, as the same is required to be ascertained by art. 2375- of the Louisiana Code, and by art. 1480 7
    
   Mr. Justice Teacher

delivered the opinion of the court.

This is-an appeal from the superior court of chancery.

The object of the suit was to recover a legacy of five thousand dollars, bequeathed by David Alexander, a citizen and resident of the state of Louisiana, to his wife. It appears- that the testator left, at the time of his death, a wife who has since intermarried with the appellant, Montgomery, and but one child by a former marriage, who is a citizen of this slate, and who has sinee intermarried with the appellee, Millikin. The will, by virtue of which the legacy is claimed, was made by the testator in the state of Kentucky, where he happened to be journeying at the time of his death.' The will was probated in the state of Kentucky, and in the county where the testator died, and was certified to the county of Adams in this state, whereupon letters of administration, with the will annexed, were granted to Samuel T. McAlister, one of the defendants to the bill; and it was likewise certified to the probate court of the parish of Concordia, in Louisiana, where it was admitted to record, and ordered to be executed by Thomas Alexander, as dative testamentary executor; the executor appointed by the will, William Alexander, being pronounced disqualified, by reason of not being a citizen of Louisiana. By the will, power and instructions were given to its executor, to sell the entire estate in Louisiana, of .the testator, which he owned in connexion with his wife and his brother Thomas; and likewise authority was given the executor, at his discretion, to sell the Mississippi property of the estate, which consisted of town lots in the city of Natchez. It appears that a sale has taken place of the Louisiana property, from the proceeds of which Millikin has received a portion, and the remainder has been secured to the separate use of his wife, by a deed of trust from Thomas Alexander to John P. Walworth, of Mississippi, who is one of the defendants to the bill. It further appears that McAlister, as administrator cum testamento annexo, effected a sale of the estate in Mississippi, and made his final settlement with the probate court, and surrendered his letters. The bill charged that Thomas Alexander has refused to pay the legacy claimed under the will, prays that McAlister may be decreed to pay whatever remains in his hands, that the remainder may be decreed to be paid by Millikin and wife, through the trustee Wal-worth, and for general relief.

The point raised in the chancery court, questioning its jurisdiction in this case, was, we think, correctly decided by that court, as was also the point made upon the ground, that there was no legal proof of the existence and execution of the will, under which the appellants claim the legacy. The same, perhaps, may be said of the opinion of the chancellor, where he decides that the sale of the town lots in the city of Natchez, by McAlister, in his capacity of administrator, with the will annexed, was illegal and void, and the legacy not chargeable in the first resort upon a fund to be derived from their sale. Montgomery et ux. v. Milliken et ux. et al., 1 S. & M. Ch. R. 495. And the position, assumed in the argument in this court that McAlister, as administrator aforesaid, was improperly made a party to the suit, does not strike us with much force ; because the entire property of the estate having been brought into this state, it must all, to some extent, be affected by a decree allowing the legacy a validity commensurate with the spirit of the laws of Louisiana, let the legacy be paid out of what particular original fund it may be, as will be seen from the train of reasoning hereafter, and because by the rules of equity pleading, in all cases where a suit is instituted for the payment of a legacy the executor or administrator must be made a party, in order to enable a court of equity to do complete justice, and not by halves. Story’s Eq. Pl. 160, 161, 162.

The remaining question in this case, whether the legacy, as /given by the will, is valid under the laws of Louisiana, and to what extent, appears to us in a different light from that in which it has been received by the chancellor. After giving his instructions, in regard to the sale of all his property, the testator says : “ Out of my portion of the sale, I wish five thousand dollars to go to my wife Mary Ann.” In order to explain the reasons of our conclusions, it will be necessary to take a brief review of the civil law, upon the subject of testaments.

The civil law limits the amount of property which may be disposed of by testament. This limitation is in favor of the legitimate descendants, or failing those, the surviving parents of the testator, who are hence called forced heirs. The portion of property which cannot be disposed of by testament, to the prejudice of the forced heirs, varies according to the number of such heirs, in a fixed ratio, and was anciently called the legi-time, as being derived ex lege. Any disposition by testament, which impairs the legitime, is so far inoperative. Upon the adoption of the Code Napoleon, the foregoing principles were declared to be law, and the amount of the legitime fixed, by its articles 913 and 915. These articles are copied almost literally, into the Louisiana Code. Art. 1480, 1481, 1482. Rogron, 190, 191. Sirey, 270, 273.

The surplus of the property of the deceased, after deducting from the mass of the succession or estate the debts due by the deceased and the legitime, (now called reserve,) constituted the disposable portion, (quotité disponible). The Code Napoleon, Art. 920, provides that bequests which exceed the disposable portion shall be reduced to it. Rogron, 192. Sirey, 275. The.Civil Code of Louisiana, art. 1489, enacts as law a similar provision.

Under the civil law as prevailing in France previously to the adoption of the code, as also under the code, a bequest which exceeded the disposable portion, could have effect only to the extent of that portion, and within that it would have full force, as the effect of the laws in relation to the legitime or reserve was only to reduce the excess of the bequest. As the law permitted a person to dispose of his property, at his pleasure, whether by donation inter vivos or by testament, excepting only the portion of the forced heirs, the only restraint imposed being that the disposition should not be for a purpose forbidden by law or contrary to good unorals, full effect was given to the will and intention of the testator; and if, in making a bequest, he exceeded the limits prescribed by law, it was presumed that he did so in ignorance of those limits, and that it was his intention to go as far in making the bequest as the law would permit. Thus the bequest which exceeded the disposable portion was to be reduced to its amount, and held to be valid so far. A declaration of such principles is found in the Louisiana Code, art. 1489. In the case of Austin et al. v. Palmer, 7 Martin’s La. R., N. S. 21, the supreme court of Louisiana says, “ The disposable part [quantum] may be given, either directly or indirectly, and if a donation be of more than the disposable part, it is not therefore void, but reducible.” In the same volume, 262, Totin v. Case, that court says, “ The donation, causa mortis, of the whole estate of one who is forced heir is not void; the donation is good, but reducible.” These authorities seem to show that the fairly presumed intention of the testator should be carried into an effect, just as he himself, with a knowledge of the limitation prescribed by law, would have done. The civil law writers encourage this view of the subject. Domat on Testaments, tit. 1. sec. 6, art. 5, says, Since the laws permit testators to dispose of their goods by a testament, it follows that the will of the testator holds therein in the place of a law.” Again, the same author, on Testaments, tit. 1, sec. 7, art. 1, says, “ If the intention can be derived from the will, or by clear and certain consequences deduced from it, or even by conjecture, it is always by the knowledge that can be had thereof, that we are to decide the matter, by adjusting the difficulty in the manner that we judge the testator would have regulated it, and according to the views and sentiments which the will shows him to have entertained.”

'The Code Napoleon, containing no rules, and the civil code of Louisiana, arts. 1706 and 1708, but few, for the interpretation of doubtful expressions, or for the solution of difficulties which may be found in testaments, the rule of the civil law is to resort to those established in relation to contracts. The Code Napoleon, art. 1156, declares that in interpreting contracts, the mutual intention of the parties is to be sought after, sooner than to adhere to the mere literal phraseology of the language. The same principle is recognized in the Louisiana code, arts. 1945, 1946. Duranton, a civil law commentator, annotating the art. 1156 of the Code Napoleon, B. 5, 121, says, “ That if in contracts it may be allowed to go beyond the literal sense of the terms used, to inquire the intention, for a stronger reason is this true in testaments, which derive all their force from the intention of the testator.” So in the ff. L. 101, it is said, “ In conditionibus testamentorum, voluntatem, potiusquam verba, consideran oportet.” The Code Napoleon, art. 1157, declares that “ where a clause is susceptible of two meanings, it must be understood in that of the one in which it can have an effect, and notin the sense in which it can have none.” The same principle is adopted in the Louisiana code, art. 1706, and it can also be found in the rules for interpreting bequests, collected in if. L. 109, de legatis. See also Rogron, 244, Sirey, 350. In the ff. 12, de rebus dubiis, it is said, “ Commodissi-mum est, id accipi, quo res, de qua agitur, magis valeat, quam pereat.” And, generally, in interpreting clauses which may conflict with the law and have no effect, and yet may afford proof of an intention on the part of the testator to do what the law does permit, such a construction should be given, which, under the law, would permit the execution of the bequest. The universal rule, as laid down in the ff. L. 192, De Reg. Jur. is, “ In re dubia, benigniorem inter pretationem sequi non mimes justius est quam tutius

The rule by which excessive bequests are to be reduced is expressly laid down in art. 1492 of the Louisiana code, and that article is a literal copy of art. 922 of the Code Napoleon. This rule gives an authority for maintaining a bequest, though it- exceed the limit fixed by law, upon its being' reduced within legitimate bounds. . ^

The immediately preceding remarks apply chiefly to- cases wherein the bequests may be excessive, by impairing the portion reserved to the forced heirs, and not generally to- cases where there is a legal restriction or disability on- the part of the legatee.

In the case now before us, it will be seen that a- very peculiar kind of disability might be supposed to affect the legatee under the will of David Alexander. Nevertheless, from the whole scope, tenor, and spirit of the civil law, from the opinions of the commentators upon that law, and from the decision of the civil law courts, it will likewise be manifest that the disability existing in the case of this legatee is not of that description contemplated- by the above exception-. It will be seen that the disability has reference to the amount or value of the bequest, and does not include a restriction upon the mode and rules of interpreting and determining it. In support of this view, Domat on Testaments, tit. 1, sec. 7, art. 24, says: “ The rules which declare that testators cannot, by any clause in their testaments, exempt their dispositions from being subject to the law, nor order anything therein contrary to law, ought to be understood only of dispositions which some law had rendered illegal, and which should be contrary to the spirit of the law. If a disposition of a testator should derogate from the provision of any law, only in a case where the spirit of the law would not be transgressed, and upon a motive which the laws would not disapprove of, such sorts of dispositions would have nothing in them contrary to law, and therefore would subsist.”

The real character of the disability in this case is thus explained. The Louisiana code, art. 1745, -expressly disqualifies a second wife, the husband having children by a former marriage, from receiving a bequest of more than the share of a legitimate child, and which bequest shall in no case exceed the usufruct of one fifth of the estate of the husband. This provision is copied from the Napoleon Code, art. 1098, changing only the amount of property which may be bestowed, which change is derived from the Spanish laws. Sirey, 323. In annotating the French code, Rogron, 232, says, that the disposable part is thus diminished in favor of'the children of the first marriage, from an apprehension that the father or mother would too easily be induced, upon contracting a second marriage, to gratify the new spouse to the detriment of the children of the first marriage. This disability of the second wife is termed by the writers on the civil law “ one of the punishments of a second marriage.” It is called a penalty or a punishment on the second wife, because she cannot receive that portion of his estate which the husband could give, even to an utter stranger. It is a rule derived from the doctrines of the Roman Catholic church. Vide Domat, Pothier, Toullier, Duran ton, et al.

The Louisiana code, art. 1745, is restrictive on the power of disposing, as limiting the disposable part, but is not prohibitory of the diposition. And the art. 1747, which provides that husbands and wives cannot give to each other, indirectly, beyond what is permitted by law, has been held by the supreme court of that state, (Casanova’s Heirs v. Acosta et al., 1 La. R. 179,) only to restrain the gift made indirectly to the amount specified in art. 1745 of that code, and that, if it exceeded that amount, it should be reduced. This decision is in accordance with the principles of the Roman law, as we find in Domat on Testaments, B. 4, t. 2, sec. 5, art. 3, commenting on the ff. L. 32, sec. 2, wherein it is said, that, “Since one may bequeath the usufruct of movable things, if a testator had bequeathed to his wife the usufruct of his house and of all things that should be found in it at the time of his death, excepting the gold and silver, and there were in said house merchant goods, in which the testator traded, and which he kept for sale, this usufruct would not comprehend these sort of things. For it would be restrained to that which should appear to be destined to be kept in the house. And so 'for the common rule of reduction, since we find it tstated in Domat, B. 4. tit. 2, sec. 3, art. 12, •— “ If a testator, having land in common with another, and devises the wJhole, without mentioning his part, the devise will have effect for the testator’s part, for it will be presumed that he meant to give the share that he had in the land.

From the above reasoning and examples, it seems safe to say that there is nothing really vindictive in the spirit of the law, affixing this disability upon the second wife. Such an inference would not be consistent with the spirit of the religion from which the doctrine of the disability originated. It is really designed only to insure that she receives no more of her husband’s estate than the amount the law contemplates, and to protect the children by the first marriage from a supposable loss. It was surely never designed as a repeal, in the respect of a second wife, of the general rules for the interpretation of testaments, or to exclude her from their benefit. Such a doctrine is hostile to the fundamental principle of the whole civil law, which is the essence of pure equity. It is said by Domat, Prel. B. t. 1, sec. 2, art. 23, that “ If any case could happen that were not regulated by some express and written law, it would have for a law the natural principles of equity, which is the universal law that extends to everything. So it is expressed in the ff. L. 2, sec. 5, “ Hæc equitas suggerit, etsi jure deficiamur.

A decision of the court of Cassation of France, in a decree of January 4, 1814, quoted by the annotator of Domat, 2, 650, (iWis ed.TS35,) seems to fix the relation which the usufruct bears to property, and to establish a rule by which usufruct and absolute property are reciprocally convertible. The court said, “ that when the disposable part is one half in usufruct, the court can declare valid a legacy of one half in usufruct, and of an amount over and above it, if, in other respects, they permit the heirs to discharge themselves of the legacy by resigning to the legatee one fourth of the estate in absolute property, because one fourth in property is estimated to be equal to the one half in usu-fruct.” [“Loj'sque la quotité disponible est de moitié en u su fruit, les juges peuvent declarer valable un legs de moitié en usufruit, plus une autre valeur en sus, si d’ailleurs ils laissent aux héretiers la faculté de se libérer, au moyen de V abandon d'un quart en pro-prieté : ce quart en propriété est répwlé Véquiválent de la moitié en usufruit.”]

Upon a review of the whole investigation upon this branch of the case, it is strikingly manifest that the rules of equity are intended to be the governing principle in the interpretation of testaments. Law and equity require that the testament shall be maintained, if possible, regarding the will of the testator as sacred, and only to be disregarded when it may be against positive law. The derogation of law, in the present instance, by allowing the bequest to subsist in some shape, it has been shown, would not transgress the spirit of the law. The will must be permitted to have the effect of a bequest of one fifth of the succession in tisufruct, or it can have none. The latter, alternative is evidently against the meaning of the rules of interpreting testaments, for it cannot be supposed that the testator intended to make a fruitless bequest". Such a construction is not to the prejudice of the forced heir, because by it the disposition of the testator is not extended, but, on the other haná, it is thereby reduced to the limit of the law and in favor of the heir. It is not making a will for the testator, since he clearly intended to bequeath as much as the law would allow him to do, provided the legacy is equal to the disposable portion. It is not changing the bequest in its nature, because property in usufruct and property absolute are reciprocally convertible by law. This was a bequest of money, which is but a representative of value, or of property, or of a right growing out of, or to be exercised upon, property. The whole estate, having been inventoried and appraised in money, which is the index of value, the bequest bears a fixed proportion to the estate. It is found to be too large. Let it be reduced, and the reduction reaches only to the value of the bequest, not to the bequest itself.

The decision of the supreme court of Louisiana, in the case of Leblanc v. Landry, 7 La. R., N. S., 665, and referred to by the chancellor, in his opinion in this case, is to the effect, that if a woman marry a second time, haviug children by the first marriage, she cannot inherit, in full property, from them, in case of the decease of any. The survivor or survivors are heirs. But if they and their forced heirs 'die before the mother, the property so inherited by them will go to her in preference to the heirs of the forced heirs. We do not see that this decision affects the rule of interpretation of testaments, as above insisted by this court.

There is left now but a matter of fact to be ascertained, since we are disposed to give to the bequest a validity of at least the usufruct of one fifth of the estate, provided the sum of five thousand dollars be not less in value than the usufruct of one fifth of the whole estate. This will be ascertained by the rule observed where usufruct and absolute property are marshalled, which is, to consider the usufruct of the whole to be only equal to the right of property of one half, and in that ratio. Civ. Code, arts. 1739 — 1745. The laws of Louisiana permit a bequest, under the circumstances, of the usufruct of one fifth of the whole estate. The sum of five thousand dollars in absolute property is equal to the usufruct of the Sum of ten thousand dollars. The testator has willed an absolute property of five thousand dollars. The clear intention of the testator therefore was, that his wife should have that amount out of his estate, and inasmuch as she cannot by law hold the absolute property in the sum bequeathed, and cannot receive at most but the usufruct of one fifth of his estate, in order to give her an equivalent for the absolute sum bequeathed, she would be entitled to the usufruct of ten thousand dollars, provided that sum did not exceed one fifth of the estate, and in that ratio as the estate may be found to be in value. Under the will, the usufruct of ten thousand dollars is the maximum of the amount she can receive, however large the estate may be, and its minimum is the usufruct of one fifth of the estate, however small it may be. The legacy is payable out of the fund proceeding from the Louisiana property, and is entitled to claim interest according to what the fund arising from the sale of the Louisiana property has produced in the hands of the heir or her representatives.

The decree of the chancellor is reversed, 'and the cause remanded for further proceedings, in accordance with this opinion.

After the delivery of the foregoing, the appellees applied for a re-argument, which was granted them. The case accordingly was again argued and submitted, and at a subsequent day of the term

Judge Thachek

delivered the following opinion.

A careful re-examination of this case has not induced any change in the principles of the first decision made by this court.

The chief point decided in our former opinion was, that the widow is entitled to the usufruct of such sum as would be equivalent to five thousand dollars in fee, provided that usu-fruct do not exceed a fifth part of the estate. In order to arrive at this point, it was necessary, first, to determine whether property in fee and property in usufruct have such relative value as would enable us to determine whether the bequest in fee exceed the value in usufi uct limited by law.

In addition to the reasons offered for the rule of convertibility, as laid down in the previous opinion in this case, the article 1739 of the civil code, it will be seen, constructively recognizes the proposition which we think approximates between property in usufruct and in fee, by using a tenth part of an estate in full property and its fifth part in usufruct alternatively. Possibly a more accurate estimate could be made by means of the principles employed by life assurance companies in calculating annuities, but, for the present purpose, this court is not called upon to make that calculation. The legacy is to be maintained, after having been converted into the kind of title which the legatee can take, and reduced within the limit of the law. These necessary estimates, as well as the value of the estate, which will afford the criterion of the legacy, are most properly matter for the chancery court and its commissioners.  