Michel v. Beale

Ogden, J. The object of this suit on the part of the plaintiff was to have her rights under the will of her deceased husband, John P. Michel, established — 353 — contradictorily with the attorney for the absent heirs, and with the legatees named in the will. Her husband died in February, 1854, leaving a largo estate real and personal, all of which belonged to the community of acquets and gains, which had existed between his wife and himself. The petitioner, who is the executrix of her husband’s will, prays first to be recognised as the owner of one undivided half of all the property, as belonging ,to the community. To that she has clearly a right, and it has been acceded to her by the judgment of the Court below. She next prays to bo decreed to be the legatee of all the movables and personal property, bank stock, claims, rights and credits, and of all the silver ware, watches or jewelry found in the succession. The will contains the following clause: “I bequeath to my dear and beloved wife all the movable property, silver ware, watches or jewels, for her to dispose of them as she thinks fit, and all the balance of my real and pei'sonal estate, I bequeath them as follows: after my death and that of my beloved wife, in case she has not spent for her own private use, the whole of my estate, as I authorize her so to do, but. what will be left after her death, I desire that one half of what will be left be given to my heirs hereinafter mentioned in the manner in which I shall dictate, for each of them, and in the following words to-wit: The testator then proceeds to say that he bequeaths to certain nephews and neices, and to two of his god-children, certain proportions of his property, leaving, however, one eighth of his property, undisposed of. The judgment of the Court below has allowed the plaintiff’s claim to a particular legacy of all the movable property with the silver ware, watches and jewels. The defendants, who are the appellees, not having asked for any amendment of the judgment, it must remain undisturbed as to that claim. The plaintiff in the third and last place prays that she be decreed to have the legal and equitable right, power and authority to take possession, and that possession be given to her of all the real estate and slaves found in the succession of the deceased, to use and enjoy the same according- to her own free will and pleasure, without any liability to account to any person or persons whomsoever, to mortgage, lease, and encumber, to sell, bargain and dispose of said property, upon gratuitous or onerous conditions, and in any way, form or manner the petitioner may think proper. This claim is set up by the plaintiff under the above clause in the will, and a clause preceding it, which is in the following words : “ As I wish to give proof to my dear and beloved wife, Josephine Michel, of all my gratitude, friendship and love, which I have always had, and which I will always entertain for her, as long as I live, I leave and beg her to be my usufructuary during her life time, and to give her the enjoyment and usufruct of all I possess, in general, of which I shall not have disposed by these presents, or other property before my death, during all her life time, for her to onjoy the same peaceably, without any kind of trouble by any person whatever, hereby granting toiler as much power as I am able to give: and, whereas, it is almost impossible to cultivate the plantation after my death, I authorize her to sell it, AS WELL AS ALL OMIER PROPERTY AND SLAVES, ACCORDINS TO IIER OWN wish, and as she will see fit, without any let or hindrance, and without being compelled to furnish security.” The Judge of the Court below decreed that the petitioner should bo recognized as the usufructuary of the whole of the balance of the testator’s real and personal estate, without being compelled to give security. The legatees — 354 — named in the will were decreed to be the owners of seven-eighths of the testator’s estate, and the heirs at law to be entitled to the one-eighth not disposed of. No appeal having been taken on behalf of either the legatees named in the will or of the heirs at law, and no amendment of the judgment in favor of either having been asked in this Court, we have only to consider whether the plaintiff is entitled to a judgment more favorable to her pretensions than the one which has been rendered below. Her counsel contends that she is entitled to a judgment decreeing to her the ownership of all the estate of her husband, and that at all events she has a right to a decree authorizing her to sell the whole property at private or public sale, and on whatever terms she may think proper. We may restrict the expressed will of the testator by reputing as not written impossible conditions and conditions contrary to the laws ; but wo are not at liberty to enlarge the will by giving to the legatee a higher title than the testator intended to give. In this case, wo are unable to gather from the whole instrument, without departing from the proper signification of its terms and from its manifest spirit, that the testator intended to bequeath the immovablesto his wife in full ownership. (0. C. 1705.) There is nothing in the will from which it can bo inferred that the testator was willing that his wife should have the right of disposing of any part of his estate by gratuitous title except as to the objects specially bequeathed to her, and which was given to her to be disposed of as she might think fit. The right of spending for her private use is not a right of disposing of the property by testament. On pourrait dire peut-étre (says Toullier) que toutes les fois quol’acte contient la faculté de disposer suivant la formule “ pour on jouir et disposer commc de ses biens propres,” le fidueiaire a le pouvoir de tester ; mais cetto régle n’a rien do sur, car dans la redaction des actes, on no s’attache point assez scrupuleusement h la propriété des expressions. Toullier, liv. 3, tit. 2. chap. 1st, Donations et Téstameos. In the case of Beaulieu v. Ternoir, 5th An., 476, to which this case has been assimilated, the formula alone mentioned by Toullier, was used. The donee in that case had the full right of ownership conferred on her by the donation. The expressions used in the donation were as follows : “ Lui a par ces presentes fait donation entre-vifs et irrévocable, eo qui a óté acceptó par ladito Eulalio Ducloslange, á cc présente, asssistée» do son pore naturel ci-dossus dénommé, aussi comparant d’un demi terrain situé au faubourg do la Course, rue des Roligiouscs, ayant 30 pieds do face sur 120 pieds de profondour, faisant partie du terrain designé par le No. 8 et atlenant au terrain No. 7, dans l’ilet No. 10, lui appartenant au donateur pour -Tavoir acheté du sieur Philip Ducloslange, par acto passó dovant le notaire soussignó lo 15 avril dernier. Pour et par lo donatairo jouir, fairo et disposer commc do chose lui apparte-nant on tonto propriété, dés maintenant et á toujours. A cet effef, le donateur met et subroge la donataire dans tous les droits do propriété qu’il a et pout avoir sur le demi terrain ci-dessus, voulant qu’elle on soil, saisio et rovétue. Cette donation est faite sous la condition oxpresse sanslaquello ces présentes n’auraient pas cu lieu, que si la donatairo vonait á dócédor sans laisscr de pos-tórité, ou sans avoir disposé d’aucune maniere dudit demi terrain, qu’alors Agatho Ducloslange, Mélito Ducloslange, Mathilde Ducloslange et Leonide Du-closlange, femmes de couleur et libres, deviendront, sans qu’il soit nécessaire do remplir aueuno formalité, propriétaires dudit demi terrain et de tout ce qui sera ronstruit dessus.” — 355 — The Court in that case very properly held that the condition annexed, that if the. donee died without posterity or without having disposed of the property in any manner, that the property should go to others indicated in the act, was not a charge to preserve the property for others — that the condition was a fldei commisKUM, which, although a nullity itself, did not carry with it the nullity of tho donation. In tho present case it is evident that tho testator did not design that his wife should have the disposition by will of his half of tho estate. He indicates himself the persons to whom, after her death, his property should go. Ho emancipates some of his slaves, but provides that the emancipation shall only take effect on the death of his wife. If, instead of declaring as he has done, that ho desired his wife to be the usufructuary of his half of tho estate, tho testator had given it to her in full property, so that she might have disposed of it by will, this legacy “ De eo quod superérit” in favor of other persons, would have been null, but this title on his death would have vested absolutely in his wife. Hnder the terms of the will and'the evident intention of tho testator to confer on his wife a title of usufruct and not one of ownership, the question as to the validity of the legacy to others, need not be enquired into, as it is unimportant except as between the legatees and the heirs at law, and the latter appear to have acquiesced in the judgment declaring the disposition valid. The attorney for the absent heirs, who pleaded the nullity of that clause in the will, as containing a disposition reprobated by law, has taken no appeal, and tho judgment of the Court below between tho legatees and the heirs at law is not, therefore, subject to revision. It remains then to bo determined, what rights the plaintiff is entitled to as the usufructuary of the half of tho property belonging to her husband’s estate. The testator undoubtedly did not intend that his wife should be restricted to the usufruct of his property, in the legal sense of the term. Ho was ignorant of the legal meaning of the term usufruct, and designed that his • wife, without having the absolute ownership of his half of tho common property should nevertheless enjoy the right of spending for her own private use, whatever she wished. Usufruct is defined to be the right of enjoying a thing the property of which is vested in another. It was contemplated by the testator that the estate would bo converted into money. The onty usufruct in its legal sense which could have been given to the wife, after the estate was turned into money, was the imperfect or quasi usufruct, to the existence of which it is essential that the usufructuary should be under the obligation of returning to tho owner of the capital on which the usufruct is established, at the period • when tho usufruct should ccasc, the full amount of such capital. It is by this equivalent says Marcadé, it has been rendered possible, to establish tho legal usufruct on all kinds of property, even on those things which are consumed in the enjoyment. The capital he says is not to be confounded with tho objects which compose it, “ Oe fonds est un bien en partie matériel en partió moral sur lequel l’usufructier a soulement le droit do jouissance, ¿’exploitations fructus ; mais non pas le droit de disposition. Marcadé, 2d vol. p. 451, Tit. 3, Usufruit. In the imperfect usufruct the property of the thing subject to the usufruct is transferred to tho usufructuary in the sense that she may consume, sell or dispose of them as he thinks proper, subject, however, to tho charges imposed by law, of returning to the person who has the naked ownership, the equivalent of tho things thus consumed, sold or disposed of. We are bound to give effect to the will of the testator, according to his intentions, so — 356 — far as these intentions can be legally carried out. It was his intention that his wife should have the authority to sell the property according to her own wish and as she might see fit, and without being- compelled to furnish security. So far as this intention does not conflict with the rights of those in whom by law the naked title to the property is vested, as the effect of the same instrument confers on the wife this authority, it may be lawfully exercised. The testator had clearly a right to provide that the usufruct of the wife might be established for her greater benefit on the proceeds of the sale of the property, rather than on the property itself. The rights of those who are entitled to the naked ownership, must be in like manner transferred to the proceeds of the sale, subject to the wife’s usufruct during life. This usufruct must be one in the legal lense. The capital on which the usufruct is established, will be ascertained when the property is converted into money. Art. 55G of the Code, declares that “ Sums of mono}'-, the usufruct of which has been given, shall be put out at interest, on good security, with the consent of the owner, and if he refuse, by the authority of the Judge, and the interest of such sums shall belong to the usufructary. We arc of opinion that the plaintiff, under her husband’s will has a right to the usufruct of the property itself, if she prefers it. The judgment of the Court below has given her this right and has dispensed her with giving security by virtue of Article 552 of the Code which provides that the security may bo dispensed with in favor of the usufructuary by the Act by which the usufruct is established. If, however, the plaintiff prefers that the property should be sold, and her usufruct established on the proceeds of the sale, she has a right to require it, but it would not be consistent with the rights of the heirs and legatees in whom the property is vested, that the plaintiff should have the right of selling at private sale. The sale should be made at public auction to the highest bidder, and after public notices by advertisement. It is therefore ordered and decreed that the judgment of the Court below be amended, and that the plaintiff, in addition to the right of usufruct allowed to her by the judgment, be decreed to have the right of causing the property subject to her usufruct to be sold, at public auction, on such terms as she may direct, after thirty, days advertisement of the sale, in a public newspaper in the parish where the property to be sold is situated, or in case there be no newspaper published in said parish, then in one published in the nearest adjoining parish, and it is further ordered that the judgment of the Court below, thus amended, be affirmed, the costs in both cases to be paid by the succession. Slidell C. J. The interpretation of this will is quite embarrassing. If the granting words had been a little broader, I would have been willing to concur in the conclusion that the testator intended to give his wife the ownership the real estate, and make a donation over of what should remain undisposed of at her death, as in the Ducloslango case. But the testator uses the word “mu. fruotuary,” dispenses with “security," (which is required in case of usufruct without a dispensation by the grantor,) and allows her to spend “ pour son usage particuler,” what she may think proper; but, as Mr. Justice Ogden suggests, does not seem to have intended she should have the right to give away by donation inter vinos or testament. When we group together the different clauses of the will, we find the language used not so broad and comprehensive as in the Ducloslange donations, as will be seen by comparing in full the deed in that case with the testament in this. — 357 — On the whole, I conclude that the decree proposed by Mr. Justice Ogden will carry out the intention of the (estator as far as it can be lawfully done; and that the testator did not intend to confer a full and complete ownership, which would hare involved a right to dispose even bj7 gratuitous title. This view seems also much strengthened by the difference of the language used with regard to the movables, jewels, &c., which, in the same will, he clearly gives her in absolute ownership. It may be observed that there are no forced heirs in this case to complicate, perhaps, the question of the testator’s power; and I am not prepared to say that our law forbids a testator to give the legatee of the usufruct of his estate a right to convert the estate given into money, and take the usufruct of the proceeds. Let it be remarked that the tes'ator feared the management of a plantation might prove embarrassing to a female, and that the power to sell seems to have been dictated by that consideration. Eor these reasons, after some hesitancy, I concur in Mr. Justice Ogden's conclusions.