
    William M. Shaw, Tutor, v. Zebulon York et al.
    Where a testator institutes certain persons as heirs, in general terms, and directs that they should receive ten per cent interest on a certain debt due him, which comprised all the property belonging to him at the date of the will, and he afterwards acquires other property, the heirs thus instituted are entitled to the property subsequently acquired, and the directions given in the will do not restrain the effect of the institution in general terms.
    APPEAL from the District Court of Concordia, Farrar, J.
    
      Stacey and Sparrow, for plaintiff,
    contended : 1. The intention of the testator is to be ascertained from the terms of the will alone, if these are positive, clear, and distinct; but, when the will is in the least vague, or doubtful, as to its meaning, his intentions are to be gathered from all the concomitant acts and circumstances derived from other sources. (C. C. 1705, 1708; 7 R. Rep. 427, 428 ; Duranton, vol. 9, Nos. 361, 363 ; 2 Ann. Rep., 581,) and especially from his acts and declarations. 1st Ann. Rep. 455, 456. Now, all the circumstances, acts, and declarations of the deceased, which have been without objection received in evidence, prove conclusively, that it was his intention to give to his nephew and niece all the property of which he should die owner, with the exception of the particular legacy made by him.
    2. He instituted them his heirs, that is, his universal testamentary heirs. C. C. art.1563. Pothier,vol. 13, p. 82,200,209. Duranton9, nos. 178,179. Hedirects his executors to dispose of the whole of his estate according to his will. They could act only after his death, and would, of course, take his estate as he might leave it. He evidently did not intend to die intestate as to any portion of his property. He simply expressed his wishes as to the future investment of that portion of his estate in the hands of Dr. Jenkins. It was then only $3,000, but was all his property except the specific legacy. This imposed no restriction upon the institution of heir, which could only take effect after his death. C. C. 1455. 4 N. S. 428. The decision in the case of Shane and Withers v. Withers' Legatees, 8 La. Rep. 489, 496, lays down the true principles upon which the present case should be decided.
    3. The institution of heir by the testator, which could have effect only after his death, can be viewed in no other light than as a disposition of all his property at the time when the disposition should take effect. The construction contended for by the defendants would render the will entirely contingent: that is, that it was restricted to the $3000 then in the hands of Dr. Jenkins. If this amount had been withdrawn by the testator, previous to his death, the legacy being a conditional one, would have failed entirely. But this was not his intention. He simply declared what was then the bulk of his property ; where it was to be found ; and lastly, the manner in which he wished it to be managed and administered for the benefit of the legatees. A similar question is well reasoned in 2d Ann. Rep. 581, 582. It is earnestly hoped and believed, that the evident and benevolent intentions of the testator, their uncle, in favor of his indigent and bereaved nephew and niece, can be legally sustained to their full extent, and that the judgment of the district court will be affirmed.
    
      B. B. Shaw, for defendant.
   The judgment of the court was pronounced by

Rost, J.

Bichard Began made a will by which he instituted Margaret and William, Began, two orphan children of one of his brothers, who were then under his care, his heirs. The testator then goes on to say, that he bequeathes to them the sum of three thousand dollars, to be allowed to remain, as it was then, in the hands of Ur. John C. Jenkins, at an interest of ten per cent per annum ; the interest to be applied to their maintenance and education. He further bequeathed three hundred dollars, out of a particular fund, for charitable purposes, and directed the executors named to dispose of his property as above directed. Between the date of his will and that of his death, he acquired a considerable amount of property,- which the executor and curator, and the attorney of absent heirs allege, did not pass under the will, and has been inherited by the collateral relations of the testator, he having left neither ascendants nor descendants.

This action has been instituted by the tutor of the legatees, for the purpose of testing that question; the prayer of the petition is, that the executor be compelled to account to the plaintiff, and to delivei to him all the property left by the testator at the time of his death. The heirs at law all reside out of the State, and appear in these proceedings by the curator and the attorney appointed to represent them. There was judgment in favor of the plaintiff, and the defendants appealed.

Under the authority of the case of Shane and Withers v. Withers' Legatees, 8 L. R. 496, and Clark and others v. Preston, executor, we are of opinion, that the words of the will, “I hereby constitute the children of my brother William Gegan, my heirs,” and the directions given to the executor, to dispose of his property in the manner provided by the will, sufficiently show that he did not intend to die intestate, for any portion of his property, and that the mention of the principal object of which it consisted at that time cannot be construed so as to restrain the institution of heirs, made in general terms. Ward on Legacies, p. 214, and cases cited.

The evidence of the acts and declarations of the testator, which have been received without objection places beyond all doubt his intention to give to his nephew and niece all the property of which he should die possessed, with the exception of the particular legacy mentioned in the will.

Judgment affirmed, with costs.  