
    BERNARD’S HEIRS vs. SOULE.
    APPEAL PROM THE COURT OP THE PIRST JUDICIAL DISTRICT.
    The husband and wife made a joint Will, and instituted each other sole and universal heir in case there was no children; with a proviso, that at the death of the survivor, any property or effects remaining should go to their heirs as legacies, in certain proportions: _ field, that the wife as the survivor became the absolute owner of all their'property and.could alienate it. But if any remained unsold at her death, it went to both their heirs.
    
    The rights of the heirs of either of the spouses, did not vest on the death of one of them, and could not until the decease of the survivor; they acquired only an eventual right or hope.
    This is an action by the descendants of the brothers and sistejs of André Bernard, living in France, who sue as his heirs and legal representatives to recover a lot of ground situated in Chartres street, New Orleans, and in the possession of the defendant, who claims it as owner.
    The petitioners allege that a short time previous to the death of Bernard (in 1790,) he and his wife, Marie Francoise Robert, made their joint and reciprocal will, whereby they mutually bequeathed, in case of having no offspring, the whole of their estate to the one who should survive the other; with a proviso that after the death of the survivor, two thirds of the estate should go to the brothers and sisters of the said André Bernard ; that he died in 1790 and his surviving widow took sole possession of all 'his estate, which she afterwards sold, and among this property was the lot of ground now claimed. They allege that she is dead and the property descends to them. They pray that they he decreed owners thereof, in virtue of the said Will, giving it to them at the death of the surviving spouse, &c.
    The defendant claims the premises under a sale made by the Court of Probates of the estate of Franqois B. Pacquelet, to whom it had been sold by the surviving widow of André Bernard in 1828. After her death, in 1834, this suit was instituted.
    The plaintiffs claim under the joint Will of Bernard and wife, giving the whole of their estate to the survivor; with a proviso, that at the survivor’s death, one third part of the property which may be in existence at that period, should descend as a legacy to the nephews of the wife, and the remaining two thirds to the brothers and sisters of the husband. The plaintiffs claim on the ground that- the survivor had no authority to alienate the property, hut only to enjoy, and at his or her decease it ’should he inherited in legacies as above claimed.
    On these issues and grounds the cause was tried.
    The district judge was of opinion the surviving wife, under the Will, had the power to alienate any of the property which she received under it. There was judgment for the defendant and the plaintiffs appealed.
    
      C. M. Conrad & Dennis, for the plaintiffs and appellants.
    
      Soulé in propria persona and appellee.
   Morphy, J.

delivered tbe opinion of the court.

The plaintiffs assert title to a piece of property in the possession of defendant, under a joint and reciprocal /will or testament of their ancestor, André Bernard, and his wife Marie Francisca Robert, bearing date the 13th September^ 1790. By this will they institute each other sole and universal heir, with the proviso, that in the event of their having any children, this mutual disposition shall become null and- void. They further provide, that at the period of the death of the survivor thus instituted, one third of such property as may then exist, shall go, by way.of legacy, to certain persons therein named, the relations of the wife ; and they make a similar disposition on the happening of the same contingency of the remaining two thirds of the property in favor of the persons under whom the present plaintiffs claim; they being the brothers and sisters of the husband.

The record shows that André Bernard died the same year this will was made; and his widow died in 1834. The latter on the 4th of March 1838, sold the property in dispute to Pacquelet, at whose' death in 1833, it was purchased by defendant at a probate sale of his estate.

The clauses in the will, which give rise to this controversy, are in the following words, to wit:

“Y del remanente de nuestro bienes, deudas, &c., nos nombramos el uno por otro por único y universal heredero para que el que sobreviviere de nos lo goce con la bendición de Dios. Y para en el caso de que se diserelva el matri-monio por muerte de alguno de nos sin tener hijos, queremos y es nuestra ultima voluntad que valga este como nuestra final disposición, mutua, reciproca, &c. Con el buen entendido que por muerto del sobreviviente da1 tercera parte de los bienes que hubiere existentes en aquella época, se le apli-quen porvia de legado que desde ahora mutuamento le ha-cemos á Don Nicolas, Don Bartholomé, Don Fernando, y Doña Maria Durochée.

The husband. joint Will, and instituted each other sole and incoase1 there ivas no children; ivith a proviso, that at the death any of the pro-re m a i nfen g ísSt^heirs as legacies in certain propor-x tions: Iidd, that simmer, be-lute owner of all and oou?d<aKeiT ate it. But if any remained unsold at lier íioU>\Áe^Teír°.

Desde ahora para quando fallesca el sabreviviente de nog> iegamos y donamos á Doña Maria Juana, Doña Catalina, Doña Magdelina, Doña Isabel y Doña Margarita Bernard, las dospartes de nuestros bienes,” &c.

It is contended, on the part of plaintiffs, that this will coil-tains a substitution which was permitted by the laws of the country in force at the death of André Bernard; that it conferred on their ancestors rights, which no subsequent legislation Could affect; that although the survivor of the two spouses, Mrs. Bernard was instituted universal heir, she had only the usufruct or enjoyment of the property bequeathed ; had no right to alienate it, but was bound to keep and transmit it to them; and this they say is the only construction which can satisfy the rule which requires effect to be given, if possible, to every part of a deed.

The construction appears to us at variance with the very terms of the instrument. From its whole context, it is clear that the intention of the two testators was to make in favor of each other the' same disposition and bequest, and to place th.eir respective heirs on the same footing. The expressions de lps bienes que hubiere existentes en aquella época, , , , . . although not repeated m the last clause, apply, m our opinion, to the two thirds of the property bequeathed to the relations of the husband, as well as to the third bequeathed to _ 1 those of the wife. They leave no doubt in our minds that on the death of André Bernard, his widow became, as his universal heir, the absolute owner of the estate. She was not bur-ihened with the obligation to keep and deliver it over to the persons named in the will; she had the free and absolute ' control of it, but if any part of it remained undisposed of at her death, then it was to have been divided according to the will 5 although the power to alienate is not expressly given, ^ can be deduced from the above mentioned exprés-sions in the will, coupled with the absence of any obligation . or charge to preserve for and return the estate to the substituted heirs. This obligation or charge which limits the otherwise absolute ownership of an universal heir, is one of-the essentials which characterize an ordinary gradual substitution. This will contains,’ we think, a disposition well known to the former laws of the country as the Jidei commissum cum libera, or Jidei commissum de eo quod supererit. Touillier informs us that dispositions of this kind were very frequent between man and wife in some parts of France; and do not in his opinion come within the purview of Article 896 of the Napoleon Code which abolishes substitutions, &c., Jidei éommissa, in nearly the same terms as Article 1507 of the Louisiana Code. Upon the whole it appears to us that the joint testators intended to prefer each other to all other persons and to divide whatever property might be left at the death of ,, , . . , . the survivor among their respective- heirs.

The rigllts of the heirs of either of the spouses, did not vest oL^of^them j and c°aled cease of the sur-qSred only orTope^ r<Sht

But admitting, as it is contended, that this will contains a gradual substitution binding on the survivor by the'law in force in 1790, we do not think that it would strengthen the case of the plaintiffs. The lights of the persons under whom they claim did not vest, as is supposed by their counsel^ at the death of André Bernard; they acquired then only an eventual right, or rather a hope which did ndt descend to their heirs, the pre-Seht plaintiffs.

Touillier, speaking of the rights of the substituted heirs which accrue only on the death of the gravatus (grévé) says : ' .

“ lis n’ont avant ce terns aucun droit formé sur les biens grévés de restitution niais une simple' espérance qu’ils ne peuvent transmettre a leurs héritiers, &c<

“Lacharge de rendre s’éteient si les appelés décédent avant l’époque marquée pour la restitution or lorsqu’ils se trouvent a cette époque incapables de recueillir les biens.” 5 Touillier Nos. 737, 738, 739. A substitution then is opened in favor of the substituted persons only by the death of the gravatus ; until that event takes place, they acquire nothing which can be considered as a right or property in them; substitutio qum non dum compétit extra nostra bona est¡ (Law 42, I): de acguiendo rerum dominio,) These plaintiffs ar'e the child fen an¿ gran¿ children of the persons named in the will who died iong before widow Bernard. They cannot, therefore, exercise rights which never accrued to their ‘ ancestors. But even had any of the latter been living in 1834, it may well be' questioned whether the Code of 1808, abolishing substitutions, and fidei commissa did not do away with the rights of all substituted heirs, which had not actually vested at the date of its promulgation. If from that time the plaintiffs’ ancestors had no longer the capacity to take under a substitution, the property bequeathed remained in the hands of widow Bernard free from all charge or obligation, if any had ever existed, and she had the right of selling, as she did, in 1828. Merlin questions de droit, vol. 15, page 50, et seq.; Jurisprudence du Code Civil, vol. 4, page 16.

The judgment of the District Court is, therefore, affirmed with costs.  