
    No. 2312.
    C. M. Shepherd et als. v. Ellen Brooks et als.
    A fidei eommissum is prohibited, even, in favor of parties capable of receiving. The interposition of parties in a testament without interest is a fidei eommissum within the prohibition, and sucli interposition, being made in fraud of the law, may be proved dehors the will. But the proof must show not only the intention of the testator to create a trust, but it must show, also, that the interposed person was aware of, or ihathe has discovered such intention, and that he has executed, or intends to execute, the trust, notwithstanding his discovery of the intention of the testator.
    APPEAL from Second District Court, parish of Orleans.
    
      Thomas, J. O. II. Oonrail <& Son, for plaintiffs and appellants.
    
      0. Boselius <£ Alfred Philips and Bandall Hunt, for defendants and appellees.
   Howell, J.

This is an action by other collateral relations of James II. Shepherd, deceased, against the heirs of Bezin D. Shepherd, deceased, and differs from the one just decided in demanding’ that the will of J. H. Shepherd be declared null, in whole — first, because it contains a substitution in favor of Abraham Shepherd, who was to take under it in case Bezin did not; or, secondly, because, taken in connection with a letter addressed to Bezin, of concurrent date, written, dated and signed by James, and fraudulently suppressed by Bezin, the two constituting the real will, it creates a substitution or a fidei eommissum in favor of certain of the testator’s nephews and nieces; or null so far as it attempts to deprive the testator’s mother of her legitime and disinherit her without cause.

The same defense was set up in both cases. Both were tried, argued and decided together, on the same evidence, in the court below, and so argued and submitted in this court.

First — As to the first ground of nullity, we think article 1508, C. C., applies. It declares that “the disposition by which a third person is called to take the gift, the inheritance or the legacy, in case the donee, the heir or the legatee does not take, shall not be considered a substitution, and shall be valid.”

Second — We have already concluded, in the former case, that the “ sealed letter ” was not concealed, suppressed or destroyed by Rezin D. Shepherd, and is nob satisfactorily shown to have been written, dated and signed by the testator, and, if it were so shown, it is not a part of his will; and consequently it does not, as such, annul the probated will for containing a substitution or fidei eommissum in favor of the nephews and nieces, as charged in the petition in this suit

But plaintiffs’ counsel, in their ai’gument, abandon the charge of a substitution, and contend that if the will of Jamos H. Shepherd consists solely of the probated paper, the disposition in favor of Rezin D. Shepherd should be set aside as illegal, because the proof is, that it. was in trust for the nephews and nieces, which proof may be made by extrinsic evidence of every description.

In their last brief, they say: “Most of the argument, oral and written, of the counsel for defendants, has been devoted to showing-that the bequest (taken in connection, of course, with the disposition in favor of the nephews and nieces) does not involve a substitution. In this we agree with them. * * * But as the evidence developed itself, and it became apparent that R. D. Shepherd, according to his own statements, was only nominally heir, with certain limited rights and privilges, but stopping far short of ownership; and that the real beneficiaries were the nephews and nieces of the testator, all doubt as to which of these two tenures, both equally illegal, the disposition belonged, was at an end. Accordingly, the word substitution’ does not once occur in our original brief.”

IVe may concede that the authorities cited by them establish the proposition that fidei commissa, even in favor of parties capable of receiving, are prohibited; that the interposition of parties without interest is a fidei eommissim within the prohibition, and that such interposition, being in fraud 'of the law, may be proven dehors the will.. But the proof must show not only the intention on the part of the testator to create a trust, but also that the interposed person, trustee, instituted heir or legatee was aware of, or discovered, such intention, and has either executed or intends to execute it. Ooin Delisle, pp. 58, 59, sections 55. 56; 12 La. 19; 3 R.-441; 2 An. 718; 6 An. 133; 15 An, 157, 600.

M. Coin Delisle, cited above, after stating the question to oe an important one, whether in the case of a regular will a secret or verbal trust or prohibited substitution can be proved, and saying that M. Rolland de Yillargues and M. Dalloz maintained the negative and M. Merlin the affirmative, and adopting Merlin’s views as the more sound, adds:

“ Mais, outre que la preuve, en pareille matihre, doit étre admise avec précaution, il faut aussi qu’il resulte bien formellement des faite .que le légataire ait consentí a étre l’intermécliaire clu testatenx pour l’cxecution d’nne substitution proMbóé. S’il n’avait été cbargó que d’une fiducie ou d’un fidóicommis indópendant de son décés, la preuve ne ponrrait étre admiso. (M. Merlin, lieu citó, Observ. sur l’arrét du 22 déccmbre 1814; Y. aussi ci-dessus No. 22.) On ne pourrait méme étre admis k prouver que le donateur avait, en faisant sa libéralitó, 1’opinion que le légataire la rendrait au tiers, parce que ‘ l’opinion que pent avoir un donateur de l’emploi probable des objets donnós ne pent j unáis étre considóróe comme une condition, méme tacite, apposóe ala donation, ni constituer un fidéicommis.’ (Caen, 31 janvier 1827.)”

We may here remark that in Duplessis v. Kennedy, 6 La. 247, and Beaulieu v. Ternoir, 5 An. 480, it was said: “ The entire disposition is null in case of substitution only.”

Now, the opinion we have formed from the facts and proofs of this case, does not bring it within the doctrine advanced by plaintiffs. We do not consider it proven that Rezin D. Shepherd was constituted, or believed himself, a trustee to transmit the estate of Ms brother James to his nephews and nieces. He always claimed to be the actual legatee of all the property, in full, indefeasible right of ownership, and from the first of his possession asserted all the rights of sole, undisputed owner, paying and liquidating debts, executing and canceling mortgages, offering for sale and selling the property, and generally and publicly doing all acts pertaining to ownership, frequently mentioning these things and his intentions concerning them in his correspondence with the members of the family; but admitting that his brother had requested him, in a confidential letter, to do certain things and make certain gifts and dispositions as of his own property, stating at the same time, in which he is sustained by the record, that his brother’s estate was greatly involved, and but for the munificent aid of Judah Touro and his own means and credit, the property would not have paid the debts. In support and direct recognition of Ms ownership, Moses, his brother, and the father of four of the claimants in these suits, jointly with three other parties, in July, 1842, bought from Mm the Golden Grove plantation and the slaves inherited by him from James, for $250,000, taking his title. It is true he, at times, used words such as “legacy,” “bequest,” etc., which ordinarily imply testamentary disposition, and wrote about carrying out the wishes of Ms brother James, as contained in the sealed letter; but, as said by us in the case of Lucas v. Brooks, just decided, all that lie has said, written ' and done in relation to this subject, must be taken and construed together, and, when so taken, there is little difficulty in determining what he meant, and it is evident the family understood it as he did, which accounts for their course of conduct up to the day of his death. After this event. Lee says he advised Ms children to take no steps until they had time to see whether or not Rezin’s representatives had instructions to do what he understood Rezin was to have done in his will. It is true, also, that Abraham Shepherd seems to have construed the probated will and the sealed letter as constituting a trust in favor of his own and Henry’s children, when he wrote to Loo, in 1838, hut it was only his ojimion, which must he taken simply as an opinion.

Our conclusion is, that Rezin was the real legatee of his brother James under the will probated in 1837, and wo think it unnecessary to go into an examination of the interesting and prolific subject of prohibited substitutions and fidei oommissa, the distinctions'between them, the effect of either upon the whole or a part of a will, and the many authorities upon each side of these questions'.

The position that the w$i is null in so far as it attempts to deprive the mother of her legitime and disinherit her without cause, is not sustained in law. Article 1489, C. C., says: “Any disposition.of property, whether inter vivos or mortis causa, exceeding the quantum of which a qierson may legally dispose, to the prejudice of the forced heirs, is not null, hut only ‘reducible to that quantum.” Plaintiffs’ counsel admit that this ie not an action of reduction, to which the plea of prescription would apply.

The judge a quo did not err in his conclusion.

Judgment affirmed.

Rehearing refused.  