
    Ducloslange et al. v. Ross.
    A bequest of land "on the condition that, in case the legatee should die without posterity and without having disposed of the laud, it should belong to a third .person”, creates a fideicommisswn, prohibited by art. 1507 of the Civil Code'.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    
      Grivot and Roselius, for the plaintiffs,
    cited C. C. 1507. 18 La. 23. 5 Toullier, no. 38.
    
      Micou, for the appellant,
    relied on Duplessis v. Kennedy,- 6 La. 232. Rachal v. Rachal, 1 Rob. 117. Liautaud v. Baptiste, 3 Rob.- 441.-
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiffs allege that, in 1819, Baptiste Beaulieu, a free man of color, made a donation by act inter viüos, of a certain lot of ground in this city, to Eulalie Ducloslange, their sister, on the condition that, in case the said Eulalie should die without posterity and without having disposed of said lot, the same should belong to the petitioners and another of their sisters, since deceased; that said Eulalie died without issue of her body, or having disposed of said lot; that a pretended sale, under which the defendant holds and claims the lot, is a mere simulation, and was made under the threats of the hnsband for the purpose of defrauding the petitioners, during the last illness of the deceased, When she was almost in extremis They pray that the said sale be annulled, and that they be decreed to be the owners of the property. The district judge was of opinion that the simulation of the sale to the defendant was established, and that the property must be considered as having belonged to the deceased up to the time of her death. He gave judgment for the plaintiffs, and the defendant appealed.

The district judge was of opinion that the clause in this act of donation, relied upon by the plaintiffs, did not create a substitution under article 1507 of the Code.

Previous to the Code of 1809, substitutions, fideicommissa, and entails to a limited extent, formed a part of the laws then in force ; b if by that Code substitutions and fideicommissa were prohibited; and not only were the ordinary terms of prohibition made use of by the legislator, but the article containing it formed part of the chapter entitled: “ Of dispositions reprobated by law in-donations inter vivos and causd mortis” — “ Des distributions réprouvées par la Ioi, &c.” This chapter contains but two modifications of the prohibition. It provides that what was called in the civil law the vulgar substitution, by which a third pei-son is called to take the gift or legacy in case the donee or legatee does not take it, should not be considered a substitution, and should be valid; and that the disposition inter vivos, and causd mortis, by which the usufruct is given to one and the naked property to another, should be received in the same light. Code of 1809, p.218, art. 43, et seq. In the Code of 1825 the chapter is retained, without any material changes. It appears, therefore, that, not oDly are substitutions in donations inter vivos and causd mortis prohibited in the most formal manner, but that the prohibition is equally formal and imperative as to fideicommissa

It is quite possible that the donation under consideration might not be consid©red a substitution, according to the doctrine of authors who have discussed the subject with reference to the provisions of the Napoléon Code. But the differ-' ence between the two Codes on this point does not enable us to avail ourselves of the benefit of their lights in determining on the matter before us. By the Napolóon Code, art. 896, substitutions are, in general terms, prohibited, with several exceptions, however, which are expressly reserved; but fideicommissa are not prohibited ; on the contrary, so far from being abolished, they are maintained, and their recognition is considered as resulting from article 967 of that Code. If the donation creates a fideicommissum, the plaintiffs are incapable of having the benefit of it under article 1507 of our Code. The prohibition of the Code is so general that no particular class of fideicommissa is excepted from it. That, without the conditions of the donee’s not having disposed of the lot and her dying without posterity, the donation by its terms would create a substitution, we think, cannot be questioned; and we think it clear that neither of the contingencies having happened, if that fact have any effect upon the donation, it is to create a fideicommissum, according to the common received definition of that term in the civil law. Mackeldey, 726, 785,786. Domat defines a fideicommissum to be a disposition causa mortis, by which the heir or legatee is requested to give, or to return, acertain thing to another person. Lib. 4, tit. 2, § 2. Potest quis singulas res per fidei-commissum relinquere, veluti fundum, argentum, homiuem, vestem, et peeuniatn numeratam; et vel ipsum hteredem rogare ut alicui restituat, vel legatarium. Inst. lib. 2, tit. 24, De Sing. Reb., per fideicom. relict. The charge derendre, appears to be the distinctive characteristic of the fideicommissum. 5 Touliier, 28. Conditional fideicommissa are classed by Touliier as one of the principal kinds. Vide also, Institutes of Justinian, by Ferriere, lib. 2, tit. 23, quccst. 2. That known under the name of De eo quod supererit closely resembles that created by the clause under consideration. The charge was to return, to a third person, what remained of the property at the decease of the heir or legatee. The right of the latter to dispose of the property held under that fideicommissum was restricted, and finally reduced, to fixed limits, by one of the novels of Justinian. Novel ad Senatusc. Trebellianum. MerlinRep., verbo Substitutionfideicommissaire, section 10, § 9.

There is no necessity for explaining the difference between the substitution and the fideicommissum. It is sufficient to state that they are not identical, for though every substitution is a fideicommissum, every fideicommissum is by no means a substitution. Gibbon, in a note to his admirable chapter on the roman law, adds; ‘-The substitutionsfideicommissaires of the modern civil law is a feudal idea grafted on the roman jurisprudence, and bear scarcely any resemblance to the ancient fideicommissa. Note 154 to chap. 44. Dec. and Fall of R. E. Both are prohibited by our laws from motives of public policy; and under that prohibition, we cannot consider the plaintiffs as having any right of action against the defendant, ,

The judgment of the District Court is, therefore, reversed, and judgmeut readered for the defendant, with costs in both courts.  