Succession of McCan. Vide, also Ventress vs. Brown, 34 An. 456. This appears more evident when the Succession of Steven, 36 An. 758, is considered, and in which quite a similar bequest was involved. Of it the court, through Judge Poché, say: "The striking feature of the will is the manifest intention of the testator to establish a trust estate, to be held by the executors, and to be preserved by them for other persons, a disposition which has uniformly been treated in our jurisprudence as a fidei commissum and always held as falling under the prohibition contained in Art. R. C. C. (1507) of the Civil Code." And in support of that proposition the opinion cites the following decisions, viz.: Arnaud vs. Tarbe, 4 La. 506; Clague vs. Clague, 13 La. 6; Rachal vs. Rachal, 1 Rob. 115; Ducloslange vs. Ross, 3 An. 432; Succession of Foucher, 30 An. 1017; Beaulieu vs. Ternoir, 5 An. 480. But there is no mention made of the Macias case. These cases are in line with other adjudicated cases which are not mentioned. For instance, in Hoggatt vs. Morancy, 10 An. 169, the court said of a similar testamentary bequest, viz.: "The tutorship of the minor child belongs of right to the surviving mother or father. C. C. 268. The disposition of the will which gave the guardianship of Anthony Hoggatt's children, at his death, to the executors of the testator, violated this article. In that respect this case resembles that of Clague in 13 Louisiana Reports, above cited." The will propounded and interpreted in Percy, Tutor, vs. Provan's Executor, 15 La. 70, provided that the whole of the testator's estate be sold and the proceeds thereof invested, "and that the funds so invested remain under the control of his executors until the age of majority of his son," etc; and of that provision the court say, viz.: “It appears to us perfectly clear that the defendant, Richardson, can not, as executor, keep in his possession and administer the estate of the minor; this is not one of the powers and privileges given by law to testamentary executors, and any clause in a testament which would extend their powers, in their mere capacity as executors, to keeping the funds of a succession in their hands after they become functi officio, ought, in our opinion, to be considered not written." In the Succession of Cochrane, 29 An. 234, the court said, viz.: "If the money had been given to some one charged to keep it Succession of McCan. until the majority of the child, and then to give it to her, this might have been a prohibited fidei commissum, but it would not have been a substitution." This was the condition of our jurisprudence when the Strauss decision was rendered (38 An. 55), and it is only necessary to cite the opening sentences of paragraph one (p. 58) to show its variance in a most essential feature from all decisions which treat of fidei commissa. They are as follows, viz.: "The charge of a fidei commissum refers to that disposition in the will which subjects the property of the testator to the administration of the testamentary executor until the minor legatees shall have reached the age of majority. "Under the provisions of our Code, a fidei commissum is understood to be a disposition by which the donee, the heir, or legatee is charged to preserve for or return a thing to a third person. R. C. C. 1520." The foregoing decisions make it plain that the definition given of a fidei commissum is altogether incorrect. The opinion confounded a substitution with a fidei commissum. The language of the Code clearly shows this. It is as follows, viz.: "Substitutions and fidei commissa are and remain prohibited. "Every disposition by which the donee, the heir or legatee is charged to preserve for or return a thing to a third person is null, even with regard to the donee, the instituted heir or legatee. "In consequence of this article, the trebellianic portion of the civil law, that is to say, the portion of the property of the testator, which the instituted heir had a right to retain, when he was charged with a fidei commissa or fiduciary bequest, is no longer a part of our law." R. C. C. (1507) (My italics.) It is obvious that the second paragraph of that article relates to substitutions, that is to say bequests which provide for two absolute takers of the property of the testator, both of whose titles are derivable from the testator; but the third] paragraph relates to fidei commissa, that is to say "fiduciary bequests," with which some one is entrusted by the terms of the will until the happening of some uncertain contingency or event. Indeed the term "fiduciary bequest" implies a trust committed and not a title conveyed. If the terms substitution and fidei commissum were not different things, why should both have been by the Code conjunctively denounced? In Ducloslange vs. Ross, 3 An. 432, the court say that "the pro Succession of McCan. hibition of the Code is so general that no particular class of fidei commissa is expected from it." Again: "There is no necessity for explaining the difference between the substitution and the fidei commissum. It is sufficient to state that they are not identical; for though every substitution is a fidei commissum, every fidei commissum is not a substitution." The same definition is given in Beaulieu vs. Ternoir, 5 An. 480, and in Duplessis vs. Kennedy, 6 La. 247. And in Duplessis vs. Kennedy, supra, an important distinction is made between the effect of the two, the substitution annulling the testament, while the fidei commissum avoids the trust, or fiduciary bequest only. And in treating this question, the court said in Michel vs. Beale, 10 An. 359, viz.: "To have that effect, that of annulling the will, the act of donation must impose on the donee an obligation of possessing for, or returning to another, the thing which is the object of the donation. In other words, to import the nullity of the whole act, there must not only be a fidei commissum, but a substitution." And what appears to me to be more evidently erroneous is what immediately follows the foregoing quotation from the Strauss case in the same paragraph, viz.: "The practical effect of that feature of the will," the one which relates to the power of administration, "is to vest the usufruct, or right of enjoyment of the testator's estate in his grandchildren, subject to the executor's administration, until they shall have reached the age of majority, and bequeathed to them the naked ownership of the same at the time they shall reach that age (p. 58). Under the provisions of the Code "the heir who is instituted under a condition can not accept nor renounce the succession before the condition has happened," etc. R. C. C. 985 (979). And it further provides that "a succession is acquired by the lawful heir, who is called by law to the inheritance, immediately after the death of the deceased person to whom he succeeds." R. C. C. 940 (934). And that article provides that "this rule refers as well to testa mentary heirs as to instituted heirs and universal legatees." Id. (My italics.) If this were not so, where would the title be during the pendency of the condition? Succession of McCan. The French law on this subject is very much the same as our own, though less general, for it provides: "When, at the decease of the testator, there are heirs to whom one portion of his property is reserved by the law, such heirs are seized absolutely by his death, of all the property of the succession; and the general legatee is bound to demand from them a transfer of the property comprehended in the will." C. N. 1004. From these articles it necessarily results, that the succession of Mrs. McCan. devolved upon her grandchildren immediately after her death, subject to the happening of the condition imposed by the will, by which their title as legal heirs may be defeated. The consequence is, that th limited employment by Mr. Hall, as administrator under the will, of the revenues of the estate of the deceased, during the minority of the legatees, is in no sense an usufruct, because the estate of the deceased, from which the revenues are to be derived, is the property of the legal heirs of the deceased, and not of another; and the Code says that usufruct "is the right of enjoying a thing, the property of which is vested in another." (My italics.) R. C. C. 525. Surely neither the Macias decision, nor any other decision, is authority for either of the foregoing propositions. The theory of the Strauss case is clearly erroneous, sustaining, as it does, the administration of Judge White on the score of an usu fruct. On the contrary, the enjoyment of the fruits and revenues of the grandmother's estate is a faculty of ownership; and so it was in the Strauss case and in the Macias case (R. C. C. 498). The attempt in the Strauss case was to separate the right of use and enjoyment from that of ownership by incorrectly styling it the usufruct of the legatee, which is an anomaly in our law. Certainly, the right of the grandchildren to the fruits depends upon the same conditions as their right to the property. All their rights under the will depend upon the same conditions. To style the use of the fruits to the extent they are necessary for their education and support, an usufruct, in order to maintain Mr. Hall's administration of the whole for a period of years, is to misinterpret the plain letter of the law and sustain a "fiduciary bequest," which is a fidei commissum. It is a well recognized principle that an executor's seizin is for Succession of McCan. specified. purposes, viz.: The payment of debts and the discharge of special legacies; and when there are neither debts nor special legacies-as in this case-his duties are entirely formal, and the testamentary heirs and universal legatees are entitled under the law to discharge him, and to be placed in possession. Succession of Fisk, 3 An. 705; Succession of Baumgarden, 36 An. 49; Succession of Charmbury, 34 An. 26. "The heirs can, at any time, take the seizin from the testamentary executor, on offering him a sufficient sum to pay the movable legacies and on complying with the requirements of Art. 1013." R. C. C. 1671. And this is the law, notwithstanding it is further declared that "executors shall continue in office until the estate shall be finally wound up" (R. C. C. 1673), the effect of the last article being to deprive an executor of any specific term, and to permit him to remain in office so long as the administration of the estate renders it necessary. Soye vs. Price et al., 30 An. 96; Lynne vs. City of New Orleans, and Manning vs. the same 26 An. 48; Succession of Dunford and Marie Charlotte Reni, his wife, 25 An. 36; Succession of Robert Y. Charmbury, 34 An. 21; R. S. 3673; C. P. 1013. Can it be seriously contended that the testatrix had the legal right to constitute Mr. Hall an administrator, and confer upon him the power to manage and control her estates for a long series of years after her death, until the youngest of her grandchildren shall become of full age; and, in the event that neither of them should arrive at the full age of twenty-one years, to absolutely divest the title of any of their children who might be intermediately born, of all interest in her estate, and convey it to strangers? To my mind this is reductio ad absurdum. This proposition is combated and completely overthrown by this court in the Succession of Stephens, 45 An. 962, in which the court, through MR. JUSTICE BREAUX, said: "A disposition by will in which the property donated is to remain in the hands of the executor until the legatee who has arrived at the age of majority shall be twenty-four years of age can not be c›ntradistinguished from one that seeks to prohibit the sale, or other exercises of the right of ownership, and is therefore an impossible condition, illegal, and to be reputed not written." |