In Fuzier Herman's Codes Annotés, under article 930, C. N., the following language is used referring to the position of third possessors owning property upon which a right of legitime is claimed: "Il n'est pas douteux que lorsqu'un donataire a aliéné les immeubles compris dans sa donation le tiers acquéreur poursuivi par les héritiers à reserve du donateur peut se soustraire à l'action en revendication de ces derniers en leur offrant en argent la valeur de ces immeubles revendiques qui devraient entrer dans leur reserve. Le tiers acquéreur d'un immeuble n'est tenu suivant le droit commun à restituer les fruits qu'à partir de la demande en reduction formée contre lui sans qu'il y ait lieu d'appliquer à son égard les dispositions de l'article 928." Numerous authorities are cited in support of this proposition.

In Cross on Succession, p. 139, the author says: "It should seem that the proprietary interest attaches after the reserve is established and the property brought back for partition. In case the property exceeds the reserve in value, the heir's interest is only to that extent; and it appears that his right is more a jus ad rem than a jus in re.

"This is shown by the fact that the donee or third possessor in an hypothecary action may keep the property by paying the balance due to the reserve. Civ. Code, art. 1509; Id. 924."

Marcadé in his Treatise on Donations et Testaments (Résumé XXXIV), referring to the effect of the right of reduction of donations has upon mortgages, servitudes, etc., says: "Mais en appliquant rigoureusement cette règle pour les hypothêques servitudes ou charges réelles quelconque dont le donataire aurait pu graver l'immeuble la loi l'adoucit pour le cas d'alienation. Elle contraint alors les héritiers à se contenter d'une somme d'argent representant la valeur du bien et non seulement le tiers acquéreur peut éviter la restitution de l'immeuble en payant cette valeur mais les héritiers ne peuvent même le poursuivre qu'autant que le donataire ne pourrait pas le payer et après avoir constaté l'insolvatilité de celui-ci. (Articles 929, 930.)"

Prosper Vernet in his Traité de Quotité Disponible (pages 499, 500), on this same subject as to the position of third possessors, says: "De là est né un tempérament d'équité qui forme sous l'empire du code une difference importante, entre les tiers qui ont acquis sur l'immeuble atteint par la reduction de simples droits d'usufruit de servitude, ou d'hypothêque, et les tiers au profit desquels il y aurait eu transfert complet de la propriété de l'immeuble. Les hypothêques, servitudes ou autres droits réels consentis par le donataire ou nés de son chef restant soumis à la rigueur du principle; soluto jure dantis, solvitur jus accipientis, et s'évanouissent absolument et dans tous les cas (art. 929) pour les aliénations au contraire, un tempérament d'équité donne aux tiers acqué

reurs le droit de renvoyer les demandeurs en reduction à discuter préalablement de donataire dans ses biens (art. 930). Cette discussion doit porter sur tous les biens du donataire, sur les meubles comme sur ses immeubles, et sur les immeubles qui se trouveraient éloignés du lieu de l'ouverture de la succession comme sur ceux qui se trouverafent situés dans le ressort de la même cour impériale. Les termes de l'art. 930 sont généraux, et il n'y a pas lieu de les restreindre sur l'application des dispositions spéciales au bénéfice de discussion accordé à la caution (art. 2021) (I). Il suit de là qu'il faut décider aussi que les tiers détenteurs sont en tout état de cause admis à opposer l'exception résultant du défaut de discussion et qu'ils ne sont pas tenus de faire l'avance des frais de la discussion qu'ils ont le droit de réquérer. Cela résulte en outre de ce que cette discussion préalable est prescrite par l'art. 930, comme condition de la récévabilité de l'action des héritiers à réserve contre les tiers détenteurs. (2) Il faut même étendre au-delà des termes précis de notre article le tempérament d'équité qu'il a introduit en faveur des tiers acquéreurs, et décider que ces tiers acquéreurs peuvent arrêter l'action dirigée contre eux en offrant de payer la valeur estimative des biens dont les héritiers à réserve poursuivent la revendication. En effet, la pensée de la loi est que la propriété des tiers acquéreurs ne doit pas être sacrifiée à l'intéret, assez faible, que les réservataires peuvent avoir à obtenir les biens en nature plutôt que leur valeur. Par cela seul que l'immeuble donné a été aliéné les héritiers réservataires n'ont plus droit qu'à de l'argent puisque la loi ne leur permet d'agir contre les tiers acquéreurs qu'après discussion préalable des biens du donataire. Si la discussion de ces biens fournissait la valeur estimative du bien donné leur action contre les tiers acquéreurs ne serait plus possible. Or, l'argent de l'un vaut l'argent de l'autre, et dès lors, peu importe que la somme qui manque pour completer leur réserve leur soit fournie par le donataire lui-même ou par les tiers acquéreurs."

The judgment of the court below is, in our opinion, erroneous in assigning to the plaintiff the ownership of an undivided interest in lot No. 5 with the right to the rent thereof to a corresponding extent. The right of the plaintiffs is to call for payment to the amount needed to secure them their legitime from the third possessor to the extent of the value of this property should they elect to pay the same, or to enforce their right through a forced sale thereof should they refuse to make such payment. The enforcement of their legitime being secured in their favor by a priority and preferencea right higher than a mortgage or privilege; a right resulting from the very tenure under which the third possessors own the property. Bank v. David, 49 La. Ann. 143, 21 South. 174. The property passed out of the

ownership of Mrs. Cane into that of Mary Hatkinson subjected to and subordinated to the right reserved by law in favor of the forced heirs (should one have existed), to be so paid or enforced. The property passed from Mary Hatkinson to the later successive purchasers under an ownership also subordinated to the same right of the forced heirs.

It is claimed that the third possessors have acquired the ownership of the property by the prescription of 10 years, but this position is not maintainable. These parties having acquired, quoad the forced heirs, to the extent of the legitime merely, an imperfect ownership in the property subjected to their right, held their right to absolute ownership in the same constantly held in suspense until the delays accorded by law to the forced heirs should have been reached and passed. The law declares that excessive donations made by parents shall have their full effect during the lifetime of the donor. Civ. Code, art. 1503. The donation became, therefore, open to attack only on the death of the donor, and, like all other claims subject to a term or condition, prescription only began to run when the right to a cause of action arose. Civ. Code, art. 732. Five years have not elapsed since the death of Mrs. Cane, and the five-years prescription has not run. Under the conditions and circumstances in which this case is presented to us we think the proper judgment to be rendered is to affirm the judgment as it stands, with the right reserved, however, to the defendant to elect within 30 days from the time the decree in this case is returned to the district court whether, instead of recognizing the ownership of the plaintiffs to the interest in the property involved in this litigation which the court decreed to belong to them, she shall pay to the plaintiffs the amount of their legitime, with legal interest from judicial demand herein up to the ascertained value of said interest in the said property; evidence of said election to be filed in the proceedings in the district court in this case. Should this right of election be not made, the present judgment affirming the judgment of the district court will be final. In the event that defendant elects to pay to the plaintiffs in money, then the amount due the plaintiffs for their legitime is directed to be ascertained and fixed in the district court contradictorily between the parties according to article 1505 of the Civil Code, and the defendant shall be adjudged and decreed to pay the same, with legal interest from judicial demand, payment to be decreed secured in favor of plaintiffs by preference and priority. Defendant's rights by reason of improvements and payment of taxes, etc., being expressly reserved; the whole subject to a right of appeal. For the purposes herein stated, this case shall be remanded to the district court for further pro

ceedings according to law. Succession of Hoa, 1 La. Ann. 144.

For the reasons herein assigned, it is hereby ordered, adjudged, and decreed that the judgment of the district court herein appealed from be, and the same is hereby, affirmed, amended, however, so as to make the rent run from judicial demand, subject, however, to the right of election herein reserved to the defendant, and under the conditions thereto attached; and this cause is hereby remanded to the district court for further proceedings according to law. The right of appeal is reserved.

1. Act No. 43, p. 48, of 1884, and the constitutional amendment provided for in it and subsequently adopted, having given to the Board of Administrators of the Tulane Educational Fund full and complete direction and control of Tulane University in all its departments and in every respect, the medical department of the university is to-day purely and simply one of the departments of the university, standing precisely on the same footing with the other departments of the university, whatever may have been its status before the adoption of the said act and constitutional amendment.

2. Act No. 49, p. 39, of 1847, creating the University of Louisiana, did not incorporate into the university as its medical department the private corporation created by the act of 1835 (Acts 1835, p. 221) under the name of the "Faculty of the Medical College of Louisiana," but thus incorporated into the university only the school which that private corporation had theretofore organized and was conducting under the legislatively given name of the "Medical College of Louisiana."

3. That private corporation suffered de facto dissolution as a consequence of the transfer of its school and its property to the University of Louisiana by Act No. 49, p. 39, of 1847, whereby it was deprived of all opportunity to do the one thing it had been organized to do, namely, to maintain the transferred school. Taking away completely and permanently from a corporation the only function it can perform destroys it.

4. Where a legislative act creates a corporation, and consolidates with it an existing corporation, all questions that may arise concerning the rights, powers, and duties of the resultant corporation, or concerning the effect of the consolidation upon the merged corporation, are to be determined solely by the consolidation act itself.

5. If the intention of Act No. 49, p. 39, of 1847, creating the University of Louisiana, was to consolidate with the university the private corporation known as the Faculty of the Medical College of Louisiana, created by the act of 1835 (Acts 1835, p. 221), then, as an effect of the consolidation, the latter corporation was dissolved, because all its functions were transferred to the consolidated corporation.

6. Four paragraphs are devoted to the bequest attacked in this case. In the first paragraph the testator says: "I give the balance of my estate

to Tulane University for the sole benefit of its Medical Department; the object of this bequest is to create a fund to be used in increasing the efficiency of the Medical Department of Tulane University as a Medical School, and to contribute to its usefulness and beneficence in ministering to the ailments, injuries and other physical infirmities of the suffering and destitute e poor of all races, ages, sexes and nationalities.

The next paragraph reads: "In furtherance of the purpose of this bequest the fund thus created is to be used by the Administrators of Tulane University under the direction and supervision of the University's Medical Faculty, for * the establishment of a clinic and a hospital," to include in its wards such a number of beds (also for the destitute poor), as, in the judgment of the faculty, may be available within the limitations of this fund

*

*

The third paragraph begins: "It is contemplated that," etc.

The fourth paragraph begins: "It is also recommended that," etc.

The validity of the bequest thus made being assailed on the grounds, first, that it contains a fidei commissum; second, that it seeks to create a tenure of property unknown to our law; third, that the establishment and maintenance of a clinic and a hospital is ultra vires of the Tulane University and of its board of administrators, held:

(a) That the medical department of Tulane University is not a third person, but purely and simply one of the faculties of the university, and, since there cannot be a fidei commissum without a third person for whose benefit the trust is established, the bequest does not import a fidei commissum.

(b) That, Tulane University and its medical department being one, the bequest is to Tulane purely and simply, and the tenure of the gift is therefore in perfect ownership.

(c) That the third and fourth paragraphs form no part of the dispositive portion of the will, but are merely advisory, as clearly appears from the use of the words, "It is contemplated," "it is recommended."

(d) That the second paragraph also would seem to be advisory, the words, "In furtherance of the purpose of this bequest" etc., giving rise to the implication that the testator considered the gift as having been definitively made in the first paragraph, and that what he proceeded to add was merely by way of advice regarding the best mode of carrying out the object of the bequest.

(e) That the gift as made in the first paragraph vested an absolute and unconditional title in the university, the designation of the object and purpose of the gift not operating as a modification of the title, but being simply the usual accompaniment of donations for pious

uses.

(f) That the recommendations of the subsequent paragraphs, if amounting to conditions, are innocuous, because, if valid, they can be executed, and, if invalid, they must be treated as not written.

(g) That the establishment and maintenance of a clinic and a hospital for the sick is not ultra vires of the university and of its board of administrators; the university having special authority to teach medicine, and the evidence showing that a hospital in which clinical instruction can be given is an absolutely necessary adjunct to medical teaching.

(h) That it requires no legislative authority to set up and maintain a private hospital.

(i) That the setting up of beds for the destitute poor is left by the will a matter of discretion.

(Syllabus by the Court.)

Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.

Suit by Edward A. Hutchinson and another against the executors of the will of Alexander C. Hutchinson, deceased, to set aside a certain paragraph of the will. From a decree upholding the will, plaintiffs appeal. Affirmed.

Rice & Montgomery, for appellants. George Denègre and Edgar H. Farrar, for appellee executors. Charles Payne Fenner, for appellee Tulane University.

PROVOSTY, J. This suit is brought by the brother and the sister of the late A. C. Hutchinson to annul the following provision of his will:

"After the above named gifts and bequests may have been paid or provided for, subject to such codicils as I may hereafter make or add to this will and for which due provision shall be made, I give the balance of my estate, real and personal, to the Tulane University of Louisiana, for the sole and exclusive benefit of its Medical Department; the object of this bequest is to create a fund to be used in increasing the efficiency of the Medical Department of the Tulane University of Louisiana, as a Medical School, and to contribute to its usefulness and beneficence in ministering to the ailments, injuries and other physical infirmities of the suffering and destitute poor of all races, ages, sexes and nationalities.

"In the furtherance of the purpose of this bequest, the fund thus created is to be used by the Administrators of the Tulane University, under the direction and supervision of the University's Medical Faculty, for the purchase of ground and erection of suitable buildings in connection with and in the immediate vicinity of the building now designated as the Richardson Memorial, and officially known as the University of Louisiana. The aforesaid grounds and buildings to be used in the establishment of a free clinic or dispensary, and for a hospital to include in its wards such a number of free beds (also for the destitute poor) as in the judgment of the Faculty may be available within the limitations of this fund.

"It is contemplated, in making this bequest, that suitable provisions will be made by the Faculty and Administrators to improve all the opportunities for the study of the nature, prevention and cure of disease by the establishment of clinical and other laboratories as may be available out of this fund, in pursuance of its philanthropic object.

"It is also recommended that a part of the fund thus created shall be reserved for investment and interest in such wise as to insure the maintenance of a free clinic until such time when this provision may, in the judgment of the Faculty and Adminis⚫ trators, be deemed unnecessary. This reserve fund shall then be utilized or expended in extending the hospital plant by creating new departments or new buildings as these

may be needed to promote the charitable and educational purpose of the bequest."

The grounds of nullity are stated in plaintiffs' brief, as follows:

"(1) The tenure attempted to be created is one not known to the law of Louisiana. Perfect ownership is not vested by the terms of the will in Tulane University or its administrators; neither the university nor its administrators has the power to control, administer, or dispose of the legacy; and the provision in question purports the substitution or fidei commissum prohibited by law.

"(2) Neither the Tulane University, nor its administrators, nor the Tulane Educational Fund has the corporate right, power, authority, or capacity to receive the legacy, and to hold, use, expend, or administer the same for any of the purposes specified in the will; such purposes being outside of and beyond the powers delegated by law to any of said persons.

"(3) The power of the Tulane University to receive the legacy for the purposes specified in the will is contrary to and forbidden by law, and particularly by an act of the General Assembly entitled 'An act to incorporate the Faculty of the Medical College of Louisiana,' approved April 2, 1835 [Acts 1835, p. 221]; and said university cannot, either as the successor of the Faculty of the Medical College of Louisiana, or as person interposed in place of the intended beneficiary, its medical department, take or receive said bequest." The defendants are the executors under the will and Tulane University.

We shall follow the example of counsel, and discuss these grounds in their inverse order.

1. Has Tulane University the capacity to receive a bequest for the benefit of its medical department?

That it has such capacity with respect to all of its departments except the medical is not denied; but the contention is that the medical department is a distinct corporation from the university, and not simply one of its departments, and that this separate corporation is prohibited by law to receive donations mortis causa, and cannot receive them indirectly through the medium of the university; that when the university was organized there had already been created by the Legislature a private corporation under the name of "The Faculty of the Medical College of Louisiana," and that this private corporation was joined to the university as its medical department; and that it has continued to retain its individuality, with the same powers and the same disabilities, and among the latter the inhibition against receiving donations mortis causa.

Per contra, defendants contend that this private corporation was never united to or incorporated into the university, but that what was adopted into the university by 36 SO.-41

Act No. 49, p. 39, of 1847, creating the university, was merely the school which this private corporation had established and had brought to a flourishing condition, and which, if not adopted into the university, would have stood in rivalry with the medical department of the university.

This idea of the binary character of Tulane University thus advanced by plaintiffs must have come as a surprise to the authorities of the university, as it did to the members of this court, all more or less acquainted with the history of the charter of the university. Perhaps a sufficient refutation of it might be found in the mere reading of some of the provisions of the charter of the university; but in view of the earnestness, and, we must say, the consummate ingenuity, with which the point is pressed, and also in view of the importance of the interests involved, we deem it advisable to give the question the same treatment it would be entitled to if less free from doubt.

The voluminousness of the matter to be handled makes subdivision advisable. We shall give first, in as compendious form as consistent with completeness of statement, the charters (all legislative) of the corporations in question-of this private corporation, the Faculty of the Medical College of Louisiana, of the University of Louisiana, and of Tulane together with all constitutional and legislative enactments bearing upon these corporations. Then we shall state, as far as may be derived from the record, the manner in which that legislation was interpreted and carried out by the parties in interest. Lastly, we shall come to the discussion prop

er.

Charters and Other Legislation.

In 1835 the Legislature adopted an act entitled "An act to incorporate the Faculty of the Medical College of Louisiana and the Medical College of Orleans."

The preamble of the act recites that seven certain physicians, naming them, have associated themselves together and taken measures for the establishment of a medical college in the city of New Orleans.

Section 1 constitutes these same seven physicians a body corporate under the name of the "Faculty of the Medical College of Louisiana," with perpetual succession and a common seal.

The second section authorizes the corporation to organize and establish a medical college under the name of the "Medical College of Louisiana," to create such professorships as they may deem expedient, and to confer medical degrees under such regulations as they may make.

By section 3 every person elected to a professorship becomes a member of the corporation, with the same rights and privileges as the original incorporators.

By section 4 authority is given to make

regulations for the election and dismissal of professors, with the proviso that a fourfifths vote should be required for the election or dismissal of a professor.

By section 5 authority is given to take and hold property, real or personal, by every kind of title, except by bequest, for the use and purposes of the corporation, but not otherwise; to sell and dispose of the same; to sue and be sued; to make rules and by-laws for the government of the college by the vote of two-thirds of the faculty.

By the sixth section a board of trustees for the corporation is established, composed of the Governor, the Judges of the Supreme Court, and nine other persons, with power to fill vacancies, whose duty it should be "to watch over and superintend the interests of the institution, to receive all sums of money bestowed on it by way of endowment or otherwise, and to invest the same for the benefit of the institution."

By the seventh section it is declared that the act should be in force for 30 years.

Act No. 62, p. 38, of 1843, entitled "An act to amend an act entitled 'An act to incorporate the Faculty of the Medical College of Louisiana,'" provided, in substance, as follows:

Section 1: That for 10 years thereafter the members of the faculty of this medical college should, without compensation, discharge the duties of attending physicians and surgeons at the Charity Hospital, such persons being approved by the administrators of the hospital; the right of other physicians to attend the hospital not being affected.

Section 2: That the medical and surgical attendance so to be given by said faculty should be equal and similar to that theretofore required, and that the faculty should submit themselves to the rules and regulations of the hospital.

Section 3: That the faculty should give free instruction to an indigent student from each parish of the state, to be recommended by the Senator and the Representatives.

Section 4: That in consideration of the services aforesaid 124 feet square of that vacant square in the city of New Orleans belonging to the state be leased for 10 years to the Medical College of Louisiana, and that said 120 feet should be measured from the corner of Common and Philippa (now University Place) streets, and that at the end of the 10 years the buildings thereon should become the property of the state.

Section 5: That the Governor should make and sign the lease.

The medical school thus provided for was fully established and in a flourishing condition when the Constitution of 1845 was adopted, containing the following provisions:

"Art. 137. A university shall be established in the city of New Orleans. It shall be composed of four faculties, to-wit: one of law, one of medicine, one of the natural sciences, and one of letters.

"Art. 138. It shall be called the 'Univer sity of Louisiana,' and the Medical College of Louisiana, as at present organized shall constitute the faculty of medicine.

"Art. 139. The Legislature shall provide by law for its further organization and government; but shall be under no obligation to contribute to the establishment and support of said university by appropriations."

In obedience to this mandate, the Legislature of 1847 adopted Act No. 49, entitled "An act to establish in the city of New Orleans the University of Louisiana."

The first section provides for the constitution of a board of administrators of the university, composed of the Governor, the mayor of New Orleans, the Chief Justice, and 13 persons appointed by the Governor with the consent of the Senate.

The second section declares that the administrators and their successors "shall be and forever remain a body politic and corporate, in fact and name, by the style of the Administrators of the University of Louisiana," with power to sue and be sued, to have a common seal, "to take by purchase, gift, grant, devise and donations inter vivos and mortis causa, made by individuals and corporations within this state or elsewhere, and in any manner to hold any real or personal property whatsoever."

The third section provides that said university “shall be composed of the following departments or faculties, to-wit: One of law, one of medicine, one of the natural sciences, and one of letters, and a college proper or academical department; all of which said faculties as the resources of the university increase, shall be completed by the said administrators, excepting the medical department, which shall be composed of and formed by the Medical College of Louisiana, as it is at present organized and established by law, which said department, as is hereinafter provided for, shall be engrafted on said University, and be conducted in manner as shall be hereinafter directed."

Section 4 gives the administrators "full power to direct and prescribe the course of study and discipline to be observed in the university"; to elect a president; to name and appoint all other professors and teachers, who are to be removable at their pleasure; to fix salaries of the president and in the academical department; and to fill all vacancies in professorships, providing “that vacancies in the law or medical departments shall be filled from persons first recommended to the administrators by the respective faculties of these departments in which a vacancy may happen."

The fifth section prescribes a quorum of five for ordinary business, and a quorum of nine for appointing or removing a professor.

Section 6 provides for the naming of a chairman of the administrators.

Section 7 provides for filling vacancies among the administrators.