
    No. 897.
    Edward Jacob, Administrator, v. Thomas L. Macon, Executor of Charles D. Yancey.
    Where the testator bequeathed to his wife ten thousand dollars, and subjoined to the bequest a desire that she should use the same for the benefit of her brothers and sisters, (designated by name,) according to her best judgment and discretion : Hdú, — That this was an absolute bequest in favor of the wife, and that she had the absolute disposal of the money bequeathed.
    The desire of the testator is simply addressed to the conscience of the devisee.
    A 1JL PPEAL from1 the Second District Court of New Orleans, Bermudez, J.
    
      E. Phillips, for appellant.
    
      Semmes & Mott, for appellee.
   Tauiafeeeo, J.

Charles D. Yancey died in July, 1861, leaving a widow and a minor child. He left a will, among the provisions of which is the following clause:

“I give and bequeath to my wife the further sum of ten thousand dollars, which I desire her to use for the benefit of her brothers and sisters, Eugene, Louise, Mathilde and Louis H. Malarcher, according to her best judgment and discretion, which is to be paid after the discharge of the debts; and, provided further, the same shall not exceed the full amount coming to the heirs and children aforesaid of Robert S. Yancey.”

The testator’s wife died in. January, 1862, having survived the child; the legatees named in the will, and Camille Malarcher, a sister, being her only heirs. The four brothers and sisters named as legatees claim this legacy, in their own right, as legatees. They also, by an amended petition, claim it as heirs of their deceased sister, Mrs. Yancey. Mrs. Camille Malarcher intervened, claiming a portion of the legacy as an heir of her sister, Mrs. Yancey. This suit is brought by the administrator of Yancey’s estate and the four legatees against the executor to compel him to pay the legacy.

The executor answered that the bequest is a substitution or fidei-commissum, and null and void; that the succession of Yancey is still in course of liquidation; that large debts against it are remaining unpaid, and if the clause of the will, under which the plaintiffs set up the demand, be valid, still, by its conditions, the amount to be paid is contingent, and not at present ascertainable. Judgment in the court below was rendered in favor of the defendant, declaring the nullity of the donation as a trust or fidei-commissum, reprobated by law. From this judgment the plaintiffs have appealed.

The only question submitted to the Court is, as to the validity of the legacy.

The ten thousand dollars are given to the wife, not for her own use and benefit, but for the benefit of her brothers and sisters. She is not to appropriate it in any manner except for their benefit. She is clothed with a discretion which is limited. She is to determine the mode or manner and the proportions in which the legacy is to be distributed. But she is not vested with the power to withhold it. The proviso at the end of the clause renders the amount to be paid contingent. The testator appointed his wife executrix, and the defendant and another executors of his last will and testament. This legacy, it may be assumed, was to be discharged by the wife as executrix.

Our Code has not abolished naked trusts, uncoupled with an interest, to be executed immediately. Mathurin v. Livaudais, 5 N. S. 302. Henderson v. Ross, 5 An. 472. Here the wife has no interest in the donation, but is charged to return the thing to a third party upon the happening of a future event, which may soon occur, or be protracted for a length of time. The seizin of the executors commenced in July, 1861, and the debts of the estate, after a period of six years, remain unsettled. We can not regard the clause of the will under consideration as constituting that kind of naked trust tolerated by our law; nor can we assimilate it to that class of fidei-commissa, in which the donee is not charged to preserve the property during his natural life, and in which it is not tied up in his hands, nor where he is forbidden to alienate it; but where the property is to be transferred to a third person only in case the first donee should not convert it to his own use. In such a case the Udei-commissum is null, being in violation of a prohibitory law, but valid as to the first donee. Beaulieu v. Ternoir, 5 An. 476. Neither is the intended donation to the brothers and sisters of the testator’s wife a substitution. But as the terms of the bequest imply the charge to preserve and return the thing to the persons intended to be benefitted by the legacy, it must be held to import a disposition reprobated by law, and that it is, therefore, null and void. Civil Code, article 1507.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed, with costs in both courts.

Howell, J.

In concurring in the opinion and decree in this case, I deem it necessary to say that the time limited by the executor for pay-ing the legacy can have no influence in determining the character of the legacy, as by law it could not be paid before that period.

On Rehearing.

Ldsley, J.

A rehearing having been granted in this case, we have again directed our attention to the following disposition or bequest in the last will and testament of Charles D. Yancey, in order to ascertain if it is null and void, as containing a substitution or fidei-commissum.

The bequest is as follows:

“I give and bequeath to my wife the further sum of ten thousand dollars, which I desire her to use for the benefit of her brothers and sisters, Eugene, Louise, Mathildé, and Louis H. Malarcher, according to her best judgment and discretion, which is to be paid after the discharge of the debts; and provided further, the same shall not exceed the full amount coming to the heirs and children of Robert S. Yancey. ”

The testator, by the disposition just recited, gives and bequeaths to his wife, to be paid to her absolutely, after the discharge of the debts, ten thousand dollars, provided this sum does not exceed the amount coming to the heirs and children of Robert S. Yancey.

He desires her to use the money for the benefit of her brothers and sisters, but she has the absolute disposal of it and may spend the money donated. 13 An. 122-8; 17 An. 231.

This lacks every feature of a substitution. It whs held in Beaulieu v. Ternoir, “it is an essential requisite of a substitution that the thing given be tied up in the hands of the first recipient during his natural life.”

II faut, says Marcadé, vol. 3, p. 368 $11, qu’il y ait substitution, que le bénéficiare soit vraiment obligé par l’acte:

18 De conserver la chose donnée;

2s De la conserver jusqu’á sa mort;

32 Pour la rendre a une persono e désignée.

C. O. 1507; 5 Toull. No. 27; Rogron, Art. 896. Trop. Donations and Testaments, No. 10, Pecquet v. Pecquet, 17 An. 230; 4 An. 204.

The desire or request of the testator, Charles D. Yancey, is simply addressed to the conscience of the devisee. 8 An. 259; 10 An. 417; 5 Toull. Don. et Test. 111, 117; Cass. 1856, p. 557; Story’s Equity, 1069, 1070; 5 Zacharie, 248, 249, note 17. Siry C. annoté, Art. 896, Nos. 2, 3 and 4.

We do not consider the bequest a trust; but if it were ono, it would bo at most a simple fidei-commissum, which, though a nullity, would not carry with it the nullity of the donation to the testator’s wife. See 5 An. 481.

By agreement of parties, this is the only question submitted to us in this ease for solution, and although the conclusions we have now reached differs from that previously arrived at, we deem it the correct one.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that judgment be and the same is hereby rendered in favor of Edward Jacob, administrator of the succession of Mrs. Feliece Malarcher, deceased widow of Charles D. Yancey, and against Thomas L. Macon, executor of the last will and testament of Charles D. Yancey, predeceased, for the sum of ten thousand dollars, amount of the legacy to Feliece Malarcher, the wife of Charles D. Yancey, made to her in his last will and testament, and that the said succession of Charles D. Yancey pay the costs in both courts.  