
    No. 6049.
    Mrs. Leda Forstall, Wife of O. C. Olivier, vs. Widow Edmond J. Forstall; and Widow Edmond J. Forstall vs. Widow V. Choppin et al. Consolidated.
    Where Hiere luis born no testamentary disposition of this disposable shave ol the predeceased husband or wife in the community, the survivor shall he entitled to a usufruct, during his or tier natural life, of so much of Hu- shareoflhe deceased in such community properly as maybe inherited by his or her Ihmic -proceeding from said marriage.
    The condition upon which Hie survivor shall haven usufruct is,-that the preducea-ed husband or wife shall nol have disjiose.il of his or her shun — Unit is the share that lie or she was permitted by law to dispose of.
    In the case at liar the disposable (tuanlmu was one-third of the property of the deceased; and the surviving widow has aeuuired this third in hill ownership by testamentary disposition.
    If the usufruct of the share of the deceased was more desirable than the full owner- ■ ship of ime-third thereof, the sm-yiving widow could have renounced the legacy. As she prefers the rights aeuuired by the will to those accorded to her by law, . she lias no canse io eomplaiu. She can nol hold both.
    APPEAL from the Parish Court, parish of Bt. James. Lanclry, J.
    
      S. Iff. Béraalt, for willow E. J. Eorstaii, executrix and appellant;
    
      Legendre & Boché and Victor Olivier, Jr., for Mrs. Leda Eorstaii and Edmond and (xiistave Eorstall, appellees;
    
      Itobl. O. Duque and It. Hunt, for Mrs. V. and Mrs. B. E. Ohoppin, appellees.
   "Wvly, .T.

This is a controversy between the surviving widow and universal legatee oí Edmond ,T. Eorstall and the children, the i'oroed heirs, in regard to the share oí tlie deceased in the community property; the widow contending that she is entitled to one-third the dis-posabie quantum, and to a usufruct of the two-thirds reserved by law to the. numerous heirs oí the deceased; and the lioirs contending that they are entitled in full ownership to the two-tliirds reserved to them by law.

l’iie question lias been very fully discussed in the, oral and written arguments of the learned counsel engaged in this litigation. We, however, find no difficulty in arriving at a satisfactory conclusion.

Article 910 of the Bevised (lode declares that “in all cases when the predeceased husband or wife, shall have left issue of the marriage with the survivor, and shrill not have (Imponed by hunt will and testament of his or her sitara hi the com-inanity property, the survivor shall hold a usu-fruct during his or her natural life of so much of tlie share of the deceased in such community property as may lie inherited by such issue. This usufruct shall cease, however, whenever the survivor shall enter into a second marriage.”

Article 1493 of the Bevised Code declares that “ donations inter virun or martin eauna can not exceed two-thirds of the property of the disposer, if he leaves at his dee,ease1 a legitimate child; cue-half if ho leaves two children; and ono-third if he leaves Hi reo or a greater number.”

Edmond J. Eorstall disposed in favor of the surviving widow by last will and testament, bequeathing to her his share of tlie community property. As there are more than throe legitimate children the legacy must be reduced to one-third, and tlie, heirs are, entitled in full ownership to two-thirds of tlie property of tlieir father.

Tlie surviving' widow is not entitled to the usufruct of this two-thirds, because tlie deceased disposed by last will and testament of his share of the community property. Article 91(5 must he construed with article 1493. Taken together, the meaning is; Where there lias been' no testamentary disposition of the disposable share of tlie predeceased husband or wife in tlie community property, tlie survivor shall be entitled to a usufruct during his or her natural lite of so much of tlie share of the deceased in such community property as may lie inherited by such issue. The condition upon which the survivor shall have a usufruct is, that the predeceased husband or wife shall not have disposed of his or her share, that is the share that he or she was permitted by law to dispose of. In the case at bar the disposable quantum was one-third of the property of the deceased, and the surviving widow has acquired this in full ownership by testamentary disposition.

If the usufruct ol' the. share of the deceased was more desirable than the full ownership 'of 0110-third thereof, the surviving widow could have renounced the legacy. As she prefers the rights 'acquired by the will to those accorded to her by law she has no cause to complain. She (tan not hold both.

The case of Matthews vs. Matthews. 13 An. 197, cited by the counsel of tilt' universal legatee, was not like the one before the court.

It is therefore ordered that the judgment herein in favor of the heirs of Edmond J. Forstall, appellees herein, bo affirmed with costs.

Rehearing refused.  