
    Fisk, Guardian, v. Fisk et al. Executors.
    Where a testator bequeaths a sum of money to A, “ for bis sole use and benefit, without any security whatever, during his natural life, and at his death to be divided and given equally to the children of S”, he must he considered as intending to create an usufruct in favor of A. Such a disposition is within the exception created by art. 1589 of the Civil Code to the prohibition of substitutions and Jideicommissa. The property in the sum bequeathed .does not vest absolutely in A ; for though, where the usufruct is of things which cannot be used without being expended or consumed, the usufructuary has a right to dispose of them at his pleasure, under the obligation of replacing them or their value, at the expiration of the usufruct (O. C. 542), as between the parties in interest, the law recognizes him to whom the property is to fall on the termination of the usufruct as the owner, and the usufructuary simply as such. C. C. 543 to 549, 556. Whenever an usufruct is legally established, whether perfect or imperfect according to the provisions of the Code, the prohibition is not violated.
    Where the facts of a cause present a double aspect, one of which represents a contract which the law authorizes, and the other one prohibited by law, the contract must be sustained.
    Where the usufructof a sum of money is bequeathed to a person," during his natural life, and at his death to be divided and given equally to the children of a third person,” such only of the children of the latter as were alive at the testator’s death, can take under the testament. C. C. 1457, 1458,1459, 1469.
    APPEAL from the Second District Court of New Orleans, Kennedy, J.
    
      Elmore and King, for the plaintiff.
    The bequest in the will of Stebbins Fisk is valid. It created merely an imperfect usufruct in favor of Abijah Fisk during his life, the-ownership being in the children of Sereno Fisk. C. C. 525,528, 533, 601, 603, 604, 605, 552, 1456, 1460, 1465, 1509, 1515. 17 La. 52. 4 Rob. 302, 410. 1 Rob. 115, 118. 5 Toullier, no. 91, p. 99. The bequest to the children of Sereno Fisk is not a substitution. C. C. 1507. 1 Rob. 118. 4 Rob. 204. 3 Marcadé, 418, 428. 8 Duranton, 62.
    
      Prentiss and Finney, for the appellants.
    1. The legacy to the children of Sereno Fisk, was clearly a legacy to those who might be living at the time of the death of AbijahFisk, the first legatee, and not to those living at the death of the testator. Such was manifestly the intention of the testator Stebbins. The words used are prospective, and refer for their effect to the death of Abijah— not that of the testator. “ At his death (that is Abijah’s), it shall be divided and given to the children of Sereno ” The testator does not give, but directs, that at the death of Abijah “ it shall be given.” The expression is clearly a direction or command to Abijah, to render or return the legacy, at his death, to the children of Sereno, who may be then living, and this constitutes a "fidei cammissum” conditional, reprobated by our law.
    2. At the death of the testator, no interest vested immediately, in the two children of Sereno then living; their interest was conditional upon the survivor-ship ; if they had died before Abijah, their heirs would not have been entitled to the legacy.
    
      3. All “ fideicommissa” are expressly prohibited by the Louisiana Code, except vulgar substitutioos, and the case where the usufruct alone is given to one and the property at the same time to another.
    4. This is not a “vulgar substitution,” because the person first called, to wit, Abijah Fisk, was capable of taking, and did take, the legacy.
    5. It is not a legacy of the usufruct to Abijah, and of the ownership to the children of Sereno, for the following reasons : 1. The terms of the donation are complete and absolute, embracing the fall property and ownership. “ To my brother Abijah Fisk, I give, devise and bequeath the sum of $>100,000”— not the usufruct of $>100,000, but the absolute property and ownership, “during his natural life.” Had the words just quoted been the only ones used, there could be no doubt that the property itself waa conveyed, and that Abijah had a complete life estate in it. The additional words “for his sole use and benefit, without any security whatever, during his natural life,” &c., so far from diminishing, strengthen the character of the legacy. It is to be “ for his sole use and benefit” daring his life. If, at the same time, the absolute ownership was in another,.how could it be sliid to be for his sole use and benefit.? Ownership is property, and can be sold, transmitted, and used like'any other property. He who has the ownership has a use and benefit int.he properly, as well as he who has only the usufruct. The terms of this legacy give to Abijah Fisk, during his natural life, full, complete, and absolute dominion over it. He can do with it as he pleases — “ without any security whatever.” These last words show that the testator intended to give him absolute dominion over the legacy, and that he should hold as absolute owner, and not as a mere usufructuary. This complete dominion rendered him complete and absolute owner during life (see Civ. Code, arts. 480, 481, 483, 484, &c.); and proves that the property, and not the mere usufruct, was given to Abijah. The same property was given to Abijah during his life, which was to be given at his death, to the children of Sereno.
    
    2d. We have attempted to show, that by t.he terms of the legacy, it was the intention of the testator that it should he “ divided and given” to the childreu of Sereno, living at the death of Abijah. If this was his intention, he could not at the same time have intended that the property should vest in the children of Sereno then living, at his own death. A usufruct is defined to be “the right to enjoy a thing, the property of which is vested in another. See Civil Code, art. 525. Whenever, then, there is a usufruct lhere must be, at the same time, an owner of the property in existence. If, then, Abijah Fisk took only a usu'fruct, what become of the property or ownership at the same time? If it vested in the children, of Sereno Fisk, then it vested in the two who were living at the death of the testator, and the three children born afterwards, are not entitled to a cent of the legacy. Again, by arts. 1459 and 1469 of the La. Code, “ donations mortis causa” cannot be made to persons, not “ in esse” at the death of the testator.
    Three of the present plaintiffs were not “in esse” at the death of Stebbins Fisk; he could not, therefore, make them a donation of the property or ownership, because they were incapable of taking. The construction contended for by plaintiff necessarily excludes three of them from the operation of the will. It is manifest that the testator intended that Abijah Fisk should hold the legacy in full property, and, at his death, return it to the children of Sereno who might then be living. This view is sustained by another portion of the will.
    After various pecuniary bequests, the testator says : “ Should there be any surplus of my estate, after paying these bequests, I give it to my brother Abijah Fisk; but should there be any deficiency, it shall be taken from the bequest made to him.”
    Even if the first clause of the will does convey to Abijah only a usufruct in the legacy, still it does not follow that the property was in the children of Sereno. We say that if it did not pass to Abijahhy the first clause, it did by the last, in which he is constituted residuary legatee. Abijah Fisk took the usufruct by specific bequest, and the naked property for his life-time, under the residuary clause; thus uniting usufruct and property, he became for the term of his life, absolute owner.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff, who is the natural tutor and guardian of his minor children, residing in the territory of Wisconsin, seeks to recover from the executors of the late Abijah Fük, the sum of $100,000, being the amount of a legacy alleged to be left to them under the will of their deceased uncle, Slebbins Fisk, who died in June, 1837. One of the executors, Alvarez Fisk, resists this demand, and claims the amount as belonging to the succession of Abijah Fisk, of whom he is the residuary legatee.

The rights of the parties before us depend upon the construction of this clause in the will of the late Siebbins Fisk :

“ To my brother, Abijah Fisk, I give, devise, and bequeath the sum of $100,000, for his sole use and benefit, without any security whatever, during his natural life. At his death it shall be divided and given equally to the children of Sereno Fisk, my younger brother.”

Under this clause Abijah Fisk received the $100,000, which he retained till his death, which took place, in New Orleans, in December, 1845.

It is contended that this legacy contains a. fideicommissum, and is within the prohibitive article of our Civil Code on that subject.

In the case of Ducloslange v. Foss, recently decided, arate p. 432, we held that, under article 1507 of the Code, fideicommissa, as well as substitutions, were prohibited. To this prohibition, the Code, in the ai tides immediately following, 1508 and 1509, establishes two exceptions; the first, in favor of the vulgar substitution of the civil law, and the second, in favor of dispositions testamentary, or inter vivos, by which the usufruct is given to one, and the naked property to another. The difficulty of distinguishing with precision between the latter and fideicommissa, leads to the conclusion that, the sense of these articles, taken with other articles of the Code, is that, these exeepted cases, although they may be substitutions or fideicommissa, are exeepted from the general prohibition. That the intention of the testator was to create an usufruct in favor of the legatee, Abijah Fisk, the language made use of leaves no room to doubt; and it is equally clear that, if no prohibition existed in relation to substitutions and fideicommissa, the children of Sereno Fisk could recover the amount of it from his succession at his death, the usufruct having terminated with that event.

But it is contended that this legacy is within the prohibition, and not within the exception, because the property in the money, or subject of the legacy, was absolutely vested in Abijah Fisk, and not merely the usufruct, and that he thereby became the owner, and not merely the usufructuary. This is true in one sense. If the usufruct is of things which cannot be used without being expended or consumed, the usufructuary has a right to dispose of them at his pleasure, under the obligation of replacing them or their value, at the expiration of the usufruct. C. C. 542. But, as between the parties in interest, the few recognizes him as the owner, to whom the property is to fallón the termination of the usufruct, and the usufructuary, simply as such, though the ownership is absolutely in him, of things which are expended or consumed in the use. See articles 542, 543 el seq. and 556. The interest, or property, in things subject to usufruct, is a fiction of few, created by the Code, with reference to which article 1509 must be construed as to its operation and intendment. Wherever an usufruct is legally established, whether perfect or imperfect according to the provisions of the Code, the prohibition is not violated.

We have held in the cases of the Bank of Louisiana v Briscoe, ante p. 157, and of Macarty and others v. Mandeville, ante p. 239, that where the facts of a case present a double aspect, one of which brought the case within, and the other left it without, the scope of a prohibitory few, the contract would be sustained. "We, therefore, concur with the district judge in his conclusion, as to the validity of the testamentary disposition in favor of the children of Sereno' Fisk.

At the time of the death of the testator, Stebbins Fisk, but two of the childrens of Sereno Fisk, were in esse, and it is urged by the learned counsel that, the? three of the present plaintiffs in interest, born since, are necessarily excluded' from all participation in the legacy. The terms of the Will are: “ At his death, it shall be divided and given equally to the children of Sereno Fisk, my youngest brother.” At the decease of Stebbins Fisk, in June, 183?, but two of the plaintiffs were bofrn, or conceived ; Mary Elizabeth, born in 1834, and Newton,- born in' 1836. The nextinage, 'Caroline, was not bora bntii September, 1838. Under the' terms of the Will, and in accordance with the provisions of the Civil Code, arts. 1457, 1458, 1459, 1469, we think that the children living at the decease of thé‘ testator can alone take under his will.

The learned judge before whom this cause was tried, at the instance of thó' counsel for the tutor, abstained from determining this question, as to Which of . the children this legacy belonged. The same request has been made in this court, but we do' not feel ourselves at liberty to decide the ease adversely to- the residuary legatee and the succession of Abijah Fiskf represented by the executors,- without determining to whofri the money in dispute, of right, belongs.- The’ judgment of the District Court will have to be changed in this respect,-

The judgment of the District Court is, therefore, in part reversed; and it is ordered that, judgment be rendered in favor of "Sereno Fisk, tutor and' guardian of his minor children, Mary Elizabeth Fisk, and Newton Fisk, agai'nst Alvarez Fisk and Charles Watts, éxeéufors of the late Abijah Fisk, for the sum of IllOCi,000, with legal interest thereon from the 13th- December, 1845, until paid,with-costs of suit. In other respects the judgment is affirmed, the appe'llo© paying, the costs of this appeal.  