author: Todd, J. Fenner, J.

text:
    No. 10,076.
    In the Matter of the Louisiana Savings Bank and Safe Deposit Company, in Liquidation.—On Opposition to Second Provisional Account.
    Payments made by syndics, liquidators and other fiduciaries, under ex parte orders of a court, are still open to inquiry as to their correctness. The practice of granting such orders without notice to those interested and without proof contradictorily made, is, as a general rule, irregular and unwarranted.
    But though unauthorized, such] orders may be regarded as confirmatory of the good faith and honestv of those making the payments. And when the charges made are not extravagant, on their face, and were for services of experts, attorneys and others, rendered under the eye of the court, and some of whom were appointed by the court without opposition, and the conduct and administration of the fiduciaries is free from suspicion of fraud, the payment will be viewed as prima facie correct, and in the absence of sufficient evidence to negative or rebut such presumption, the payments will not be rejected.
    When an insolvent estate or banking institution is administered by three liquidators, whose commissions are fixed by law, they will not, in addition to such commissions, be authorized to charge a salary for their services. Nor will they be entitled to the assist anee of clerks, unless they first show that from the intricacy of accounts, or other cause, the services of the clerks were a necessity, and obtain the authority of the court for their employment, when they have already the help of two experts in the work of liquidation.
    The depositor beepmes the ordinary creditor of the bank unless he makes a deposit in kind, as defined by the Code. Civil Code, Arts. 2940, 2943, 2944, 2945, 2963, 3522; 9 La. p. 50; 17 La. p. 162; 10 Ann. p, 342.
    A PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Blame & Butler and H. O. Miller for John Crossley & Sons, Opponents and Appellants :
    The liquidating commissioners of insolvent banks can claim no salaries, but are restricted to the commissions allowod by the law. P. S., Section 1818.
    Not can they subject the estate to pay salaries for clerks, save in exceptional cases, where the necessity exists, and then the charges must be reasonable, the theory of the law being that the commissioners must themselves render the necessary clerical services for which their commissions are compensation. 1 Ann. 21.
    Experts are authorized to be appointed to .state complicated accounts, not to instruct the court on the general issues of the case. If there are no accounts to be stated the estate cannot be subjected to pay expert fees. If there are such accounts, the fees must be proportioned to tbe labor requisite and performed by the experts. O. P., Arts. 433, 444.
    Counsel fees incident to the liquidation of on insolvent bank must be proportioned to the services rendered, and to the result of the litigation in which the services are claimed to have been rendered. 12 Ann. 533.
    The payment of debts of an insolvent estate or bank by liquidating commissioners must he on au account notified to creditors by advertisement, and after judgment of homologation. Payments of claims against insolvent estates in course of administration, made on ex parte oiders, will not hind creditors unless sustained by proof. P. S., Section 1815; Civil Code, Arts. 1179, 1180,1185, etseq.
    The depositor becomes the ordinary creditor of the bank unless he makes a deposit in kind, as defined by the Code. Civil Code, Arts. 2940, 2943, 2944, 2945, 2963, 3522; 9 La. p. 50 17 La. p. 162; 10 Ann. p. 342.

      Horner & Lte for the Porter Heirs, Opponents ánd Appellants.

      James B. Guthrie and James D. Seguim for Milton C. Kandall, Opponent and Appellant.

      W. 8. Benedict and Chas. 8. Bice for Appellee.
   The opinion of the Court was delivered by

Todd, J.

The Louisiana Savings Bank and Safe Deposit Company was placed in liquidation in June, 1879. On the 16th of June, 1887, the ■ liquidators, or commissioners, filed their second provisional account.

This account exhibits assets as follows :

Dividend to commissioners by bank when they took charge.$ 43,171 70

Proceeds sale bank building............................ 52,700 00

Received on account.................................... 6,870 00

Making total assets....................................$102,321 70

The total charges on the account amount to $81,197.

Oppositions were filed to the account by the heirs of Royal A. Porter, deceased, Milton C. Randall and John Crossley & Sons, and from adverse judgments these opponents have'appealed.

I.

Opposition op this Porter Heirs.

Upon the settlement of the succession of Royal A. Porter, the father of these opponents, their distributive shares were found to be in the aggregate of $9866.15, which sum was deposited in the Louisiana National Bank to the credit of the succession of the decedent, subject to the control of the mother and natural tutrix of the heirs, then minors.

On the I2th of June, 1878, under an order of the Second District Court of New Orleans, this fund was withdrawn from the bank mentioned and deposited in the Louisiana Savings Bank, where it drew interest, which was paid to the tutrix.

On the 31st of May, 1879, an order of the same court was rendered, directing the withdrawal of said fund from the Savings Bank and the investment thereof by the tutrix in United States bonds.

On the 4th of June thereafter this order was presented to the president of the bank, who, after a short delay to ascertain the correctness of the order, informed the tutrix that no United States bonds could then be purchased in New Orleans, but that he would take the money and send it to Washington City and there purchase the bonds for the heirs. To this the tutrix agreed and surrendered her bank book and received two certificates of deposit — one for the shares of the two youngest heirs, and the other for the oldest, who had then been emancipated — accompanied by the assurance of the president of the bank that these certificates would be exchanged for the bonds as soon as they arrived, which, it was stated, would be about the 7th of July. The bonds never came; the investment was never made, in fact, and the bank failed — closing its doors on the 30th of June.

It possessed at the time, in cash, $32,639 42, which went into the lands of the commissioners.

On the account of the commissioners, these heirs are placed thereon is ordinary creditors.

They claim, however, by reason of the facts recited above, that their lieposit was a special deposit, entitling them to be paid by preference )ver all creditors. This is the sole question relating to this opposition to be determined.

The contention of the opponents rests entirely on the hypothesis ;hac there was an actual deposit made on the 4th of June, 1879. The ictual deposit was really made in June, 1878, and, in point of fact, 'rom that time continuously the fund was in possession of the bank, ifter the proposed investment of the fund in bonds, as before.

From the time of the actual deposit of the money in June, 1878, the leirs or their tutrix were never in possession of the money.

There was an order of Court, it is true, requiring the fund to be nvested in United States bonds, but the fund was not withdrawn for he purpose of this investment, and although there was a promise on he part of the president of the bank to make this investment, or mrchase the bonds for the parties, it was never done by him, and the noney remained in the bank as before. The issuing of the certifi¡ates, even coupled with the promise of the president to invest in the >onds and the purpose of the depositors to effect the investment, did lot change the status or condition of the fund and convert the original rregular deposit of 1878 into a real or special deposit.

We cannot, under any reasonable view of the circumstances, con-true this deposit as a real or special deposit as contended for by the ipponents.

A deposit, as defined by the Code, “ is an act by which a person reeives the property of another, binding himself to preserve it, and eturn it in kind.” C. C. Art. 2926.

“ The depositary cannot make use of the thing deposited without he express or implied consent of the depositor.” C. C. 2940.

The depositary ought to restore the precise object which he has reeived.” C. C. 2944.

“ The only real deposit is that where the depositary receives a thing o be preserved in kind, without the power of using it, andón the conition that he is to restore the identical object.” C. C. 2963.

He who deposits a thing in the hands of another, still remains the wner of it.”

Consequently his claim to it is.preferred to that of the other creditors of the depositary, and he can demand the restitution of it * * * if the thing reclaimed be identically the same which he deposited.” C. C. 3222.

The deposit thus specifically described in the foregoing articles is claimed by opponents to be the kind of deposit that was made by them in the Savings Bank, and upon this claim exclusively their case rests.

It will be seen that the essential condition of a deposit — a real or special deposit — is that the thing deposited can be identified.

In this case $9866, in no particular or designated kind of money, was placed in the bank in June, 1878. In June, 1879, the bank failed, having in its vaults in money $32,639.

That the fund deposited more than a year before could be identified and taken from these moneys found in the bank would certainly seem impossible, and even that any of this original fund remained and made part of this balance found was highly improbable.

Yet'this identification is essential.

In the case of Longbottom’s executors vs. Babcock, 9 L. 50, an opposing creditor to the executor’s account claimed a privilege for or on account of a special deposit. We quote from the decision as follows :

The evidence in the record shows that the deceased was the attorney in fact of Colton Henry during his (Henry’s) absence from the State, and that before his departure he had given his agent (the deceased) a check on one of the banks for $1300, to be disbursed on his account, and that $1100 was found in the store of the deceased at the time of his death. But there is no evidence to show that this sum is the same money received by the testator. Art. 3189 (now 3222 U.C.) requires, in order that the depositor may exexcise his right of privilege, proof of the identity of the thing deposited must be made. It is of the essence of deposits that the depositary should be bound to keep the thing deposited and restore it in kind to the depositor. In this case the money appears to have gone into the hands of Longbottom as the agent of Henry. He was bound to account for it, but not to restore it in kind. He did disburse a part of it for the use of his principal. The court properly rejected the claim as a privilege.”

The case of Matthews, Finlay & Co. vs. their Creditors, 10 Ann. 342, is confirmatory and even more strongly illustrative of the same principle. We quote from that decision :

The money was counted and debited to the depositaries simply as so much cash.
Special or real deposits are usually sealed up, and not counted by the banker, and are to be returned in kind. * * * The box or package containing the real deposit is endorsed with the depositor’s name, and is put away by itself in the vault, there to remain until demanded by the owner, and checks cannot be drawn against it.”

In view of the above it is plain that the issuing of the certificates of deposit in this case cannot be regarded as changing in any wise the character of the deposit as contended for by opponent’s counsel.

A certificate is given as evidence of the amount standing to the credit of the depositor. The main object of such certificate i§ to afford satisfactory evidence of such credit, and to enable the depositor to utilize the credit by drawing checks against or upon the amount so deposited, whereas it is seen from the authority last cited that if it be a special or real deposit, checks cannot be drawn upon it.

The counsel for opponents claim that the identification of the fund was sufficient, because the bank, when it failed, had in its possession cash exceeding in amount the deposit. We have before adverted to the extreme improbability that any part of this money was part or parcel of the funds originally deposited. But the authority of the casein 9th La., above cited, is, as we have seen, directly opposed to such contention.

It is true that authorities from other States were cited by the counsel of the opponents that undoubtedly supported their argument, and especially on this particular point, but they belong to a different system, and were the enunciations of equity courts relating to trusts, express or implied, and to trust funds. While they are authorities entitled to respect, we cannot yield to them in the face of the positive declarations of our written law, and the settled jurisprudence under it.

The claim was properly construed to be an ordinary debt of the bank, and the privilege rejected.

II.

The claim of Milton C. Randall is for services rendered the commissioners as an expert.

He was paid $3090, but demanded $7000 more, and appeals from a rejection of his demand.

It is strongly urged by the opponents of this claim that there was no necessity for this appointment. That the issues were such, that the services of an expert were not required. Were this a matter open to discussion, the necessity for the appointment of an expert might be .reasonably questioned. He was, however, regularly appointed on the application of the commissioners, without opposition from any of the parties litigants. He rendered continuous services for a long time, but whether the character of those services, and the report made thereof, were strictly within the line or scope of his duties or appointment, it is at least too late to be made a subject of inquiry.- The appointment must be considered as regularly and legally made.

We have attentively considered the character of the services rendered, their value to the parties, etc., and at present will content ourselves in saying that we are not convinced that $3000, which the expert received, was an inadequate consideration for the services, and see no reason to disturb the conclusion of the judge a quo, who rejected the demand for further remuneration.

The consideration of this claim will occur again in the course of this opinion.

III.

The opponents, John Oossley & Sons, were mentioned in the account as creditors, but the amount owing them was stated therein as unknown.

1. By the judgment of the lower court, the amount of the indebtedness of the estate to them was fixed at $41,714.11, with legal interest from the 10th of March, 1886, and the further sum of $14,968.25, with legal interest from the 18th of May, 1886. These sums were in exact •conformity to the decree of this Court, rendered on appeal in the case of Crossley & Sons vs. Louisiana Savings Bank, 38 Ann. 75. A larger amount was adjudged by that decree than was given by the judgment now under review, but by that decree a privilege for part of the debt was recognized in certain drainage warrants, and they were ordered to be sold and their proceeds applied as a credit on the debt. They were so sold, and the debt was reduced thereby to the sum or sums allowed by the judgment of the lower court in the instant case.

This adjustment of the debt was undoubtedly correct,

2. They opposed the charges imposed’ or sought to be imposed on the insolvent estate for salaries of the commissioners, hire of clerks, compensation to experts and fees of attorneys. Their opposition to these charges were all dismissed. As before stated, the entire sum for distribution amounted to $102,321.70. The total charges on this fund for the administration of the insolvency, paid under orders of the court, amounted to $69,000.

(«) The commissions of syndics on sums that came into their hands, as fixed by law, are 5 per cent on amounts up to $50,000, 3 per cent on amounts not exceeding $100,000, and 2 per cent on all sums above 1100,000. So that their entire commissions on $102,321 would be $4046, and no more.

There is charged as commissions on $43,172, the amount first received by the commissioners from the officers of the bank, $2158, and to. this is added, “as received on salaries of commissioners,” $900 more, making in all $3058. The charge for commissioners is a proper one, but there is no warrant in law for the additional amount charged on account of salaries, and this must be rejected.

(6) The charges for clerk hire amount to $2000. It is to be noted that the entire fund for distribution, $102,321, consisted of $43,172, on hand when the bank failed; $52,700, proceeds of sales of real estate, and $6449, derived from collections. The creditors among whom this fund was to be distributed, and the respective sums owing them, was a matter of easy ascertainment, and the entire claims of all the creditors could probably have been listed from the bank’s books. It seems to us that the three commissioners might have performed this work themselves, and the services of clerks dispensed with. The rule as to such allowances for clerks in cases like the present one, is thus properly declared in the case of Pandelly vs. His Creditors, 1 Ann., p. 21, quoting:

“ The syndics receive a compensation for their services in the shape of a commission. Among the services the law expects them to render is the keeping of proper official accounts. Cases may arise in which extraordinary skill as an accountant might be required to unravel complicated accounts left in confusion by the insolvent, and in such cases, upon a distinct allegation by the syndics of the difficulties and necessities of the case, we are not prepared to say that the testimony in support of such allegations would be inadmissible. Such were not the allegations of the tableau.”

The entire charge for clerks, under this authority, which we approve, should have been íejected. So far, in this instance, from it appearing in the statement submitted by the commissioners, that there was a necessity for the services of clerks, there was no mention made in court or petition for their employment, and no judicial authority obtained therefor.

(e) There was paid to Milton Randall, as before stated, $3000, and it likewise appears that the further sum of $1500 was paid Edwin Harris, another expert engaged during the administration of this insolvent estate.

The labors of the first named continued three or more years, and of the latter for at least six months.

These parties were appointed by the court without opposition from the creditors or parties in interest, and it is too late to draw in question, as is sought to be done, the necessity or propriety of their appointment,

Opposition is, however, urged to the payments made them for their services.

An examination of the evidence in the record cannot fail to produce the conviction that the services rendered were exceedingly arduous and of great value, even if some of the labors of one of them — Mr. Randall — were misdirected as charged.

The liquidation of this insolvent institution has been attended by the most important and protracted litigation, in which the gravest issues were presented and the most intricate and complicated accounts, amounting to many hundred thousand dollars, were to be adjusted, and some of the most difficult' questions and problems relating to banking and book-keeping were to be solved.

These labors were performed under the eye of the judge before whom the proceedings were pending, in which their services were rendered, and who approved the charges and granted express orders for their payment upon the application of the commissioners.

These orders of the judge approving the charges and directing their payment are, however, not to be considered as conclusive in favor of their correctness. On the contrary, as a rule, such orders should be reserved for, or rather confined to, approval of accounts contradictorily rendered, and after due notice and delays, such as are required for the due and regular homologation of accounts and tableaux.

These judicial orders, though irregular, are, however, confirmatory of the good faith of the commissioners in allowing the charges, and whose conduct during their entire administration is free from suspicion of fraud or dishonesty.

The pay,) ent of these charges fully comes under the rule so often announced in the decisions of this Court, that where payments are thus made by executors or other fiduciaries in the administration of estates, acting under oath, apparently in good faith, and not extravagant on their face, they are to be deemed and treated as prima fade correct. 2 U. S. 596; 6 U. S. 334; 3 R. 283; 6 Ann. 129.

We find in the record no evidence whatever to rebut this prima facie presumption in favor of the correctness of these items.

Under these circumstances, we cannot disturb the conclusion reached by the judge a quo in dismissing this opposition, whatever might be our opinion of the correctness of these charges, were the entire matter open to inquiry and the simple proposition presented for the first time, whether the commissioners, should pay them in their entirety.

(d.) The fees allowed the several attorneys who were employed during the course of the administration' of the insolvency were all opposed as excessive.

This opposition includes the fee of Chas. S. Rice for $2000 — $1000 paid already — the fee of T. J. Semmes, $2500, paid, and that of W. S. Benedict, for $10,000, not paid.

In regard to Mr. Rice’s fee, the attorneys for the opponent use the following language in their brief, respecting the same. Quoting:

“ In view of Mr. Rice’s services in placing the bank in liquidation, and other services detailed by him, the opponents would be content with the $2000 charged for, if that is to be in full.”

In view of this admission and under the condition expressed, that it is a finality, the charge is approved.

The services were rendered by Mr1. Semmes under a contract with the commissioners, in which the amount of his fee was fixed. This was approved by the Court and its payment made in compliance with its order.

As before stated, with reference to the litigation that has transpired during the progress of this liquidation, the amounts involved were very large, the question of law and fact very grave and complicated, demanding the highest professional skill for their determination, and imposing great responsibility, and we doubt not that the commissioners, in making the engagement with Mr. Semmes, were actuated by entire good faith.

For the reasons given with reference to the charges of the experts, we shall decline to disturb the ruling made by the court belo w with respect to this item.

The services of Mr. Benedict were engaged by the commissioners at the commencement of their administration, and the chief labor and responsibility has fallen upon him as the regular and principal attorney of the estate. They have been arduous in their character and the record shows faithfully performed and of great value. Had he been the only attorney who rendered services in the administration of this insolvency, and his fee the only one to be paid, we do not think the amount charged — $10,000—for the valuable services rendered, would have been too much. But considering the assistance he has received from his able associates and the immense charges that this estate is burthened with, we think that $6000 would be a reasonable and sufficient fee for Mr. Benedict.

This completes the review of all matters embraced in this obligation.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court, in so far as it dismisses the oppositions of John Crossley & Sons to the charges of the commissioners for salaries amounting to $900, and to clerks’ hire $2000, it be reversed, and the oppositions in this respect be sustained and charges rejected.

That the judgment, in so far as it dismisses the opposition of the charge for fee of W. S. Benedict, it be amended by reducing the charge in fee from $10,000 to $6,000; and that, as thus amended, and in all other respects, the judgment be affirmed. The costs incurred by the oppositions of the Randall, and the Porter heirs to be paid by them respectively in both courts, and those incurred by the opposition of John Crossley & Sons, be paid by the liquidation in both courts, reserving to the liquidation the right to recover from the parties whose claims where rejected or reduced the costs incurred by the opposition of the Crossleys to such items.

On Application toe Rehearing.

Fenner, J.

We granted this rehearing solely on two points, viz:

1. The disallowance by our former decree of $2000. placed upon the account as expenses of clerk hire.

2. The disallowance of $900 compensation for special services of commissioners.

I.

A reference to our opinion in relation to this case, reported in 35th Annual, p. 196, will show that it presents very peculiar features, which need not now be further detailed. Suffice it to say, that these commissioners first selected by the stockholders and, on their request, appointed by the court, were placed in charge of the affairs of this large bank. These affairs were extensive and complicated. The case was not like an ordinary insolvency in which the insolvent is required to present a full statement of his affairs in the shape of elaborate schedules, setting forth the assets and liabilities with proper particularity and information as to all the items thereof.

In such a case the syndics, thereafter appointed, find in these schedules a proper basis for intelligent action, and have the right to exact from the insolvent all further necessary information.

But these commissioners had no such aids. They were bound to do for themselves what the ordinary insolvent would have been required to do at the outset — to ascertain the nature and extent of the assets and liabilities, and the relations of the bank generally to third persons, so as to elucidate and understand its affairs, and thus he enabled to liquidate them properly.

It is obvious that, under such circumstances, the aid of at least some of the clerical officers of the hank was absolutely essential, and that, without such aid, the commissioners must have been like a ship without a rudder.

It is, therefore, apparent, from the nature of things, that the retention and payment of such officers were proper and necessary, and finding that the charges now assailed were submitted to and approved by the court, and were actually paid under judicial order more than eight years ago, we conclude that we-applied too strictly the rule laid down for ordinary syndics, and that the ruling of the district judge on this subject should have been left undisturbed.

II.

As to the allowance of $900 to the commissioners for special services, we fee no reason to change onr former opinion. But as the payment has been actually made, as the present account, is only provisional, and as it appears that a larger amount will properly come to them, as legitimate commissioners, on their final account, we will permit the present allowance to stand, with provision that it shall be credited to any future allowance for commissioners.

It is, therefore, ordered that our former decree herein be amended so as to affirm the judgment appealed from in so far as it rejected the oppositions to the charge for clerks’ hire, and also to affirm it in so far as it rejected the opposition, to the charge for salaries ; provided, however, that said charge is to he deducted from any future allowance for commissioners; and that, as thus amended, it remain undisturbed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,171.
    State of Louisiana vs. Thomas Tiernan.
    A ruling of the trial judge cannot be reversed, unless the bill of exceptions wakes such showing of the facts and circumstances a9 will enable this court to decide that be erred.

      APPEAL from the Civil District Court for the Parish of Orleans. 1loman, J.
    Hi. J.. Ounningham, Attorney General, for the State.

      Wm. L, Thompson for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The record presents for our consideration a single bill of exceptions (others being waived) which recites that Thomas Howe, State’s witness, testified “ That he told McCarthy, the deceased, to come with me, that Tiernan was coming with a pistol, to which evidence or statement defendant objected because it was the mere opinion of the witness and as such not entitled to go to the jury as evidence ; that the court overruled said objection,” etc.

This is the entire bill as offered to the judge for signature, and its insufficiency, as foiling to show in what way the statement, was a mere opinion, is apparent.

The judge, however, in his reasons, states that defendant’s objections were of an entirely different character as was also the evidence objected to. He gives the statement objected to as follows: The witness said “that having seen Tiernan’s coat lying on a bucket in the bar-room, he inquired where Tiernan had gone to, when some one in the crowd said, ‘here he is coming with a gun.’ Witness then told McCarthy to come along with him. At that time the accused was coming down the street with something in his hand.” The judge states that the grounds of defendant’s objection were that the words spoken and repeated were hearsay and had not been uttered in the presence and within the hearing of the witness. The judge ruled that the words spoken formed part of the res gestee of the transaction then going on, and as such was admissible.

If we give the exception the benefit of the judge’s reasons as part of his bill, nothing appears on the bill anywhere to show any error in the judge's ruling. For ought that appears to the contrary, the expression may have been strictly part of the res gestee, and we cannot reverse his ruling without clear showing of error.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,074.
    George Smith vs. T. J. Sellars & Co.

      A servant must be held to have accepted the service of his employer, subject to such rea. sonable risk as may be incidental to the character of the employment; and within that limitation he cannot be awarded damages for the occurrence of an accident, or resulting injury.
    An employee engaged in a hazardous enterprise cannot he required to give a laborer a posi tive guarantee against danger and injury which may he suffered from accidental and fortuitous causes.
    A servant, necessarily, assumes the risk only of such hazards as aie apparently incidental • to an employment intelligently undertaken; and if he he aware that proper precautions have notheen taken for his safety, and still continues the service, notwithstanding the risk, he will be considered as having assumed the responsibility of his own security.
    APPEAL from tlie Civil District Court for the Parish of Orleans. Bightor, J.

      Harry H. Hall for Plaintiff and Appelle#1:
    I.
    The master will be held liable for “subjecting the servant, through negligence, tc greater risks than those which properly belong to the employment. Thompson, Negligence, II, 969; Hilliard, II, pp. 424, 456, 459, 4G7; Addison, Torts, I, pp. 226, 257; Wharton, Negligence, § 205; Beach, Contrib. Neg. 311; Wood, Master and Servant, 678, 843; Wait, IV, p. 417; 102 Mass. 572; 55 111. 492; 8 Am, Bep. 661; 31 Ind. 175; 62Mo. 230; 63 Penn. St. 146; 34 N. J. L. 151.
    II.•
    A servant assumes only the risks ordinarily incident to the business. Wood, Master and Servant, pp. 738, 739, 672, 681, 763; Wharton, Negligence, § 199; Beach, Contrib. Neg., 370; McAuley vs. Brownlee, 32 «Tur. (sc.) 415; Mason vs Edison, 28 Bed. B. p. 228; 32 Iowa, 357; Pool vs. R. R., 56 Wis. 227; Alexander vs. Tennessee, 3 Pacit. R. p. 735; V. 48 Wis. 375; Patterson vs. Pittsburg, 76 Penn. St. p. 393; Cook vs. St. Paul, 24 N. W. Bep. 311.
    III.
    The servant has a light to íely upon the superior judgment and knowledge of the master. Wood, Master and Servant, pp. 749, 751, 677; Thompson, Negligence, II, p. 975; Wait, IV, 417; do. do.; 41 Barb. 366; Wharton, Negligence, § 215.
    IV.
    When the master delegates his duty to another person, he is liable for that person’s negligence. Woods, Master and Servant, pp. 87L-873; 81* N. V. 521; 37 Am. Bep. 521; 84 N. V. 77; 31 0 . 287; 27 Am. B. 510; 11 Mass. 245; 11 B. I. 152; 49 N. V. 521; 53Id.551;2 Haws (N. V.) 506; 59 N. V. 517; 38 Wis. 289; 78 Penn St. 26; 17 Wall. 553; 28 Barb. 80; 20 O. 415; 52 Mo. 373; 14Am.B. 424; 47 Mo. 567; 4 Am. Bep. 353; 100 IT. S. 213; Wood's Master and Servant, pp.833, 835; 20. 415; 3 O. 201; 31 O 287, 292; 2 Duv. 114; Wharton, Neg., § 232; Beising vs. Steinway. 5 N. E. B. 449; Wharton, Negligence, § 235; Thompson, Negligence, II, p. 1030; Beach on Cont.Neg. note, p. 331.
    V.
    One to whom the master delegates the performance of his duties, as master, is not a fellow servantof those over whom he exercises those duties. 3 Wait, Act. and Deft., p. 415; 61 Mo. 492: 62 Wo. 326; 38 Wis 289; v. note; 21 Am, Bep. 579, 582,; 76 N. C. 5; Beach, pp, 331, 334, 389; Thompson, Negligence, II p. 1028, et seq. 1030; Wait, Act. and Def., 4, p. 415; Beach, Conttib. Neg.} p. 334; 61 Mo. p. 495; 26 Ind. 74; 76 Penn. St. 389; 49 N. X. 672; 45 Md. 229; 44 Md. 283; English" cases cited at p. 335 of Beach; G-ormly vs. Vulcan. 61 Mo. p. 494; 47 Mo. 567; 59 Mo. 495; 62 Mo. 327; 108 Mo. 289; 78 Penn. St. 25; Wait, A. and J) 8,p. 297; 50 Mich. 179; 45 Am. R. 35; 41 do. 812; 80 Ind. 281; Shear-man & RedfiolcL on Negligence, § 102; Wharton on Negligence, § 222; 53 N. X. p. 55; 53 N. X. p. 527; Ryan vs. Baggelley, 50 Mich. 180.
    VI.
    The burden of proof of contributory negligence is, in sucb cases, upon the defendant. 15 Wall. 401; 93 TT. S- 291; Wood, Master and Servant, p. 777; 29 Iowa, 14; 4 Am. R. 181.
    VII.
    When the jury has failed to do justice the court, in the exercise of its jurisdiction, must doit, and will increase the verdict. Sullivan vs. R.R., 39 Ann. 800.
    VUI.
    A verdict for $10,000 for loss of boy’s arm is not excessive and will not be disturbed on appeal. IKetclium vs. R. R., 38 Ann. 777.

      Charles 8. Bice for Defendants and Appellants:
    1. The petition shows no cause of action.
    2. The petition charges only a fortuitous accident, or one incidental to the employment; and shows no relation between the alleged cause of the accident and the accident itself.
    3. The servant takes upon himself all risks incident to his employment. He has no right to dictate to his employee how he shall conduct his business. If be does not like the manner in which it is conducted, he may remain or quit. If he remains, without promise of remedy, he does so voluntarily and at his own risk. The servant is not “sub jected to the will of the master ’ ’ in such wise that he is compelled or coerced.
    4. The evidence justifies defendant’s foreman in refusing plaintiff’s demand, for reasons assigned by him at the time. It shows that the accident was purely fortuitous; that pUintiff was uot injured by anything that either lie or the defendant had anticipated, or could reasonably have anticipated ; that every precaution was used and care exercised by_ defendants’ foreman, that a careful and prudent man would exercise ; and negligence in no respect is imputed to him, in the falling of the joist, by plaintiff, or any of his witnesses.
   The opinion of the Court was delivered by

Watkins, J.

Plaintiff claims ten thousand dollars damages for injuries inflicted, at the hands of the defendants, under the following circumstances:

Tnaton or about the 12th of July, 1886, he was employed by the defendant as a laborer to assist in the demolition of the Exposition buildings, in this city, and, while thus engaged, he was injured by a falling joist.

That shortly prior to receiving the injury, in order to protect himself from possible danger at the deirick, to which post he had_ been assigned by defendants’foreman, he rove the line of the fall entrusted to his care, through a block fastened to the derrick platform, thus permitting Mm to effectively perform his duty, at a safe distance from the derrick ; that, arbitrarily, unreasonably and unlawfully, the foreman of the defendant ordered him to remove said block, and would not permit him to work in a place of safety; and that he was subjected by the defendant to the authority of said foreman, their agent, and was compelled to obey him ; and that in consequence, solely of the said unlawful acts of defendant and their aforesaid agent,” he received the injury complained of.

“ That the danger which alone could have or was seen by him, in his employment, was the breaking or falling of timbers swung to the derrick, and being lowered; that the joist that fell and injured him was not swung, but would not have struck him had he been permitted to use the block, as above set out.”

In limine the defendant tendered the plea of “no cause of action,” and it was overruled, and we think incorrectly.

The danger against which the plaintiff sought to guard himself, by reaving the line of the fall through a block attached to the derrick platform, “ was the breaking, or falling of. timbers swung to the derrick and being lowered,” and not the falling of “ the joist” that was not so swung, or being lowered.

The unlawful act of the defendant that is assigned, is that of its foreman in refusing to permit Mm to “perform his duty at a safe distance from the derrick,” in the manner stated above.

There is no charge that the falling of the joist was apprehended, and danger from that cause foreseen, by either the plaintiff or the defendant’s manager. On the contrary, the petition contains the dis tinct averment “ that the danger which alone could have been or was foreseen by him, in Ms employment, was the breaMng or falling of timbers swung to the derrick and being loivered.”

The dangers from a falling joist was unforseen, and not anticipated by either.

There is no charge that the falling of the joist was occasioned through the fault or negligence of the defendant, its servants, or agents. It is not averred that the falling of the joist should have been foreseen and provided against by the defendant and its, managers.

Prom the allegations of the petition we take it that the falling of the joist was the result of an accident; and it may have been caused by some latent defect in the construction of the building. This was a danger entirely independent of that which might have threatened the plaintiff by the falling or breaking of timbers swung to the derrick.

The falling of the joist seems to have been altogether fortuitous. The place where the plaintiff was directed by the foreman to stand was not alleged to have been more within the compass or area of falling joists than that he had chosen as a place of safety from “ breaking or falling timbers swung to the derrick.” Non constat that had he occupied that position, unrestrained by the defendant, or his foreman, that, or a similar accident, would not have happened.

The defendant must be held as innocent of the cause of the danger, and cannot be made responsible for the injury sustained.

The defendant’s counsel propounds the followiug query, viz.:

“ In other words, let us suppose that there was reason to fear that timbers swung to the derrick would break or fall, and thus threaten danger to those working near the platform; that the plaintiff was refused the safeguards from that danger, as he alleges, but remained under such refusal at the place of supposed danger. Are the defendants liable to him because of some other danger that was not foreseen by him or by them, and for which neither knowledge, nor culpable ignorance, nor negligence in them is charged?”

We are of the opinion that they are not.

A servant must be held to have accepted the service of his employer, subject to such reasonable risk as may be incidental to the character of the employment; and, within that limitation, he cannot be awarded damages for the occurrence of accident, and resulting injury. An employer, engaged in a hazardous enterprise like that of the demolition of the Exposition buildings, could not be required to give to every laborer a positive guarantee against danger, and immunity against injury, which might be suffered from accidental and fortuitous causes, over which he could exercise no control, and of the likelihood of which he could have entertained no apprehension at the time the contract of employment was entered into, or previous to the happening of the accident occasioning injury.

It has been well said by a distinguished author that it has often been justly remarked that a man may decline any exceptionally dangerous employment; but, if he voluntarily engages in it, he should not complain because it is dangerous.” Cooley on Torts, p. 555.

The servant assumes the risk only of such hazards as are apparently incidental to an employment, intelligently undertaken; and, if he is aware that proper precautions have not been taken for his safety, and still continues the service, notwithstanding the risk, he will be considered as having assumed the responsibility of his own security. Leary vs. Boston and Albany R. R. Co., 139 Mass. 584; Sullivan vs. India Manufacturing Co., 113 Mass. 396; Coombs vs. New Bedford Cordage Co., 112 Mass. 572; Wood on Master and Servant, p. 809.

■ The falling of a joist cannot, in this instance, be considered as a latent or extraordinary danger, not reasonably contemplated in the plaintiff’s employment.

We are of the opinion that the defendant was not responsible for the accident, or the injury; and that plaintiff’s petition does not state a cause of action against him.

It is therefore ordered, adjudged and decreed that the verdict of the jury, and the judgment thereon based be set aside, annulled and reversed, and that the plaintiff’s and appellee’s demands be rejected at his cost in both courts.


author: Bermudez, C. J. Watkins, J. Fenner, J.

text:
    No. 10,159.
    Succession of John T. Moore.
    Forced heirs have an action in. reduction of excessive donations, which extends not only against co-heirs, but even against strangers. It includes a spouse.
    The usufruct which the law allows to the surviving spouse, over the share of the deceased in the property of the community, during widowhood, when there exists issue of the marriage, is not defeated by testamentary dispositions of the deceased, bequeathing the disposable portion to the survivor and the usufruct over his undisposed share of the community property.
    Such usufruct can be defeated only where the predeceased has, by will, disposed of his share in whole, or in part; adversely to the usufruct, so that both, the usufruct and the bequest, cannot co-exist.
    Bonds payable to bearer, and title to which is transmissible without indorsement or assignment, hut by simple delivery, may be the objects of a manual gift, and are not required to be donated by authentic act. This sort of donation is subject to no formality.
    Property donated must be appraised at its value, at the death of its donor, and.fictitiously added to the property owned, by Mm, at his death, in-order to ascertain the disposable portion.
    Excessive donations are not null, but reducible.
    Donations, in excess of the disposable portion, produce no effect, for the surplus.
    ■When the property donated is less in value than the disposable portion and that portion has boen bequeathed to the donee, the latter is entitled to the difference from the estate of the testator.
    A husband may give to his'first wife that which he can to a stranger, but not more. In case of an excessive donation to her, the donation may be reduced at the instance of the forced heirs, whose legitime has been encroached upon, but only to make it good.
    A PPEAL from the Civil District Court, Parish of Orleans. ±\_ Tissot, J.

      Bobert G. Dugue for Mrs. Julia Moore and the Minor Hickey, Plaintiffs and Appellees :
    All donations, whether made in or out of the State, are to be considered in determining the reduction to which they are liable, and must be fictitiously added to the property belonging to the donor at his death. C. C. 1505,

      Only those are excluded which have perished by accident in the hands of the donee. C. C. 1506.
    In calculating the disposable portion, tlie property given or bequeathed to all persons whether relations or strangers, must be included. C. C. 1234,
    A donation 07)vnium boiiorum is null for the whole. C. C. L497.
    One must have a domicile somewhere. Domicile once acquired continues until another is obtained, and the burden of proving the change is on him who asserts it.
    Both the fact of abode and intention of remaining indefinitely are necessary to establish a new domicile. The fact of abandoning a place in search of another place, without that place being determined upon, and occupied or inhabited as a residence or domicile, does not operate an abandonment of the first domicile. 31 Barb. 47D ; 53 N. Y. 568.
    The allegation of domicile in a bill in chancery, standing alone, is not decisive. Ibid.
    There is no proof of the donations made in Lrew York.
    If they were made, they wore simulated and fraudulent, and were invalid in form. 22 A.nn, 97 ; 12 R. 76 ; C. O. 1536, 1538.
    If valid, they were revoked tacitly. C. O. 1749; 2fi Ann. 449, 195; 5 Toullier, §§ 912, 914. 923; 23 Demolombe, § 482; 15 Laurent, §§ 332, 333; Aubry & Bau, p. 115; 4 Troploug, Donations, § 2667.
    All that is acquired during the existence of the community is presumed to belong to it, and everything found in the possession of the survivor is presumed to belong to the community until the contrary is shown. 0 . 0 2334, 2402, 2404, 2405; 16 Ann. 209; 37 Ann. 104.
    In a testate succession composed solely of community property, a bequest of the disposable portion by the predeceased spouse deprives the survivor of the usufruct of the légitime of the forced heirs. Forstall vs. Forstall, 28 Ann. 198; Denégre vs. Denégre. Opn. Bk. 45, fol. 529: 33 Ann. 1; 32 Ann. 1218; 26 Ann. 198; 33 Ann. 55; 13 Ann. 424; 12 Ann. 646.
    The légitime cannot be impaired. C. O. 1710; 3 L. 9; 32 Ann. 1218.
    The legacy must be accepted or renounced for the whole. C. C. 986,1016.

      Singleton, Brown & Choate and H. D. Ogden for T. A. Flanagan, Tutor, In ter ven or.

      T. J. Senvmes & Legendre and W. B. Lancaster for Widow A. J. Moore, Defendant and Appellant:
    1. The motive which influences a party to change his domicile is immaterial if the intention is real. 138 Mass. 372 ; 5 Mason, 70; 117 U. S. 123.
    2. The intention to remain in a place for an indefinito time suffices to acquire there a domicile. 8 Oranch, 279; 33 Ann. 137; Landis vs. Walker, 15 Ann. 213.
    3. Although the party removing to that place may have a floating intention at some time to return. Story Conflicting Laws, Sec- 46; Whart. Confl. L:, Sec. 22 (n); Lawrence’s Com. on Wheat.,, Yol. Ill, p. 98.
    4. The decision in 28 Ann. 198, Forstall vs Forstall, is erroneous. The surviving spouse is entitled to the usufruct of any portion of the deceased’s share of the community property not disposed of by will, and which the issue of the marriage may inherit. The share of the deceased in the community property is totally distinct from the disposable portion of the estate; the act of 1844 intended to burden any part of the community property inherited by the issue of the marriage with the usufruct of the surviving spouse, even though such commuity property constitute the légitime of the children in whole or in part.
    5. Gifts from husband to wife, during marriage, are valid by the law oí LTew York, and are upheld in equity without the intervention of-a trustee wherever the common law prevails. Equity has always disregarded the oneness of the spouses at common law, and like civillaw treated married persons as two. 88 H. Y. 302; 96 H. Y. 540 ; 36 H.Y« 412; 48 H. Y. 216.
    6. In common law States, a delivery, with intent to transfer title to a chose in action, or note, or bond, or certificate of deposit, unindorsed, is a good gift; a fortiori, a gift of government bonds, payable to bearer is good on delivery with intent to give. Hackney vs, Vroman, 62 Bar. 668; 1 Bailey (S. C-), 117 ; 13 Gray, 418; 55 H. Y. 68; 36 H. Y. 340 ; 107 TJ. S. 611.
    7. If a husband espressos intent to give, subsequent possession is presumption that gift was made. 62 Barb. 668; 1 Bailey (S. C.), 117.
    8. If a man take a note in name of his wife on sale of his property, it is presumptive evidence of a gift. JUchardson vs. Livery; 67 Mo. 411.
    9. Donations, valid hy the law of the place where made, are not affected by subsequent change of domicile. 36 CoDn. 160 ; 12 Ann. 607.
    10. If the domicile of Mr. Moore was in New York at the time of the donations made to his wife there, such donations are not subject to reduction under the law of Louisiana, although at the time of death he was domiciled in Louisiana. Wharton’s Confi. of L , Sec. 202.
    11. But the validity of a gift is to be determined hy the law of the place where made, irrespective of the domicile of the parties. Emery vs. Clough, 63 H. H. 552; Giday vs. Moore, 86 H. C. 484.
   The opinion of the Court was delivered by

Bermudez, C. J.

The object of this suit is to have it judicially declared :

1. Tliat the widow of the deceased is not entitled to a usufruct over bis share in the community property. .

2. That the donations of securities and cash made by the deceased to his wife, in New York and New Orleans, are nullities, and if not such, are excessive, and should be seduced to the legal quantum.

3.' That the deceased left individual property, which he owned previous to his marriage, and which must be accounted for.

The defense is, that the deceased, by his will, confirmed the usufruct given by law to bis widow and lias bequeathed to her the disposable portion of his estate ; that the donations attacked are valid as having been made in New York during the existence of the domicile of the couple in that State and agreeably to the local law.

There was judgment recognizing the succession as a creditor of the community for $7000, the widow as a creditor for $2000 ; that Moore never acquired a domicile in New York ; that the donations are simulated j that the effects douated should be inventoried; that the widow is entitled to the disposable portion and tlie plaintiffs to the share accruing to them as forced lieirs, in that portion of his estate of which-the law prohibits him from disposing.

From this judgment the widow prosecutés this appeal. The appellees have prayed for no amendment.

Three questions are therefore presented :

1. What are, in the eye of the law, the testamentary dispositions of the deceased and what is practically their extent.

2. Whether the donations made in New York are or not valid.

3. Whether the succession is a creditor or not of the community.

John T. Moore died in this city on March 29th, 1886.

He left a surviving wife, seven children and two sets of grandchildren representing their deceased mothers.

He executed a will on October 20th, 1885, which was followed by a codicil dated February, 1886.

The will contains the following clause:

“ All the property I am possessed of, consists of community property. I give, devise and bequeath unto my wife, Agnes Jane Byrne Moore, the usufruct during her natural life, of all the property I may die possessed of, community or no community. I hereby appoint my said wife executrix of this my last will and testament, with seizin of my entire estate, and without any bond or security whatever and without an inventory of my estate.”

The codicil contains two special legacies, amounting to ten thousand dollars, and the following clause :

I give and bequeath unto my said wife, Mrs. Agnes Jane Byrne Moore, the disposable portion of all the property, real and personal, movable and immovable, in whatsoever the same consist and wherever situated, I may own or possess at the time of my death, and to that end I constitute my said wife my universal heir and legatee.
“I do hereby declare that this is a codicil to the last will and testament, already referred to as having been made by me by act before W. J. Castell, late a notary public in this city, on 20th October, 1885, which said last will and testament shall be and remain in full force and effect.”

I.

These clauses must be taken and construed together in order to ascertain what the intention of the testator was.

A careful consideration of them impresses the mind that his main object was to give to his wife all that the law allowed him to dispose in her favor.

The first expresses the wish that she should have the usufruct during life of all his property, and he next bequeaths to her the disposable portion of that property, constituting her to that end his universal legatee.

The plaintiffs contend that, under the terms of the act of 1844, now Article 916 R. C. C., and under Article 1710 R. C. C., the widow cannot claim both the disposable portion and the usufruct.

Article 916 reads:

In all cases, when the predeceased husband or wife shall have left issue of the marriage with the survivor, and shall not have disposed, by last will or testament, of his or her share in the community property, the survivor shall hold in usufruct during his or her natural life so much of the share of the deceased in such community property as may be inherited by such issue. This usufruct shall cease, whenever the survivor shall enter into a second marriage.”

This is a reproduction of the second section of the act of 1844, p. 99; R. S. 1711.

Article 1710 justifies an action to revoke charges or conditions illegally imposed by a testator on the legitimate portion of forced heirs, and is a reproduction of Article 1703 of the Code of 1825.

The purpose of the law was obviously to enlarge the rights of the surviving spouse by conferring on him or her, privileges not previously possessed.

Under anterior laws, such spouse was entitled to take only his share of the community property, and had no claim whatever over the portion accruing to the issue of his marriage with the deceased, as Ms share therin.

Since the passage of the law, the surviving spouse has, virtute legis, a right of usufruct over the share of the deceased in the community property inherited by the issue of the marriage whenever the deceased has not, by a testamentary disposition, provided to the contrary.

The usufruct, under the provision of the law, continues during the widowhood of the survivor, when there exists issue of the marriage arduo will to the reverse.

The law did not propose, by allowing the usufruct, to abridge any of the rights of the first dying spouse. On the contrary, it left it within his power, his discretion, even his caprice, to place Ms share in the community property in the condition in which it would have been in, had not the law of 1844 been passed, as, it provides that the usufruct will accrue to the survivor, if the deceased has not disposed, by will, of his share, inherited by the issue of his marriage.

The spirit and the letter of that portion of the law are simply, that the surviving spouse shall have, during widowhood, the usufruct of the share of the deceased in the property of the community, there oeing issue of the marriage, when the deceased shall not, by will, have disposed of. his entire share in the property, so as to defeat the legal usufruct over the whole; clearly implying, that, when the deceased shall have, in that mode, disposed of a part of his share, the usufruct created by law, should extend only over the portion inherited by the issue of the marriage, due regard had to their legitime.

At Moore’s death, his widow was clearly entitled’to her half of the community property, and, in the absence of any will to the contrary, she would also have been entitled to a usufruct during her widowhood, over the remaining half, that is the share of her husband therein inherited by the issue of the marriage. In honorem preteriti matrimonii. A fortiori, would she be entitled to such usufruct, when, there being a will, it provides that she shall have it.

Surely, as the law did not design to curtail any of his rights over his property, which lie possessed previous to the law, Moore could have bequeathed the nalced ownership of the disposable portion in favor of any stranger, for, under the previous laws, he could have disposed of that portion of his estate even unqualifiedly, such ownership to become eventually full ownership, at the termination of the usufruct.

His widow, in the case just stated, would have had a usufruct over the entire share, as well that portion bequeathed to the stranger, as that inherited by his issue, the legatee taking nothing beyond the naked ownership of one-third, and the issue that of two-thirds.

There would even be no objection to his bequeathing the disposable portion, without any restriction, including both ownership and usufruct, to a stranger, leaving the other two-thirds to accrue in naked ownership to his forced heirs as the maximum of their légitime, but subject to the usufruct of his widow.

"What he could do in favor of a stranger, he could validly do in favor of his wife.

Who can do more, can do less.

■ It is apparent, that the only condition imposed by law for the existence of the usufruct in favor of the survivor, is that the deceased shall not have disposed by will, adversely, of his share in the community.

As a consequence, it follows that where the adverse disposition affects only part of the share, the usufruct shall not extend over the disposed portion, but shall exist over the undisposed portion, inherited by the issue of the marriage.

Disposing of the share means disposing of the entire share.

To dispose of pan-t of the share is not, to dispose of ihe entire share, is not to dispose of the share.

It is true that Moore could not encumber the portion for which his children are forced heirs, that is their legitime; but the fact is that he has r ot done so, for the encumbrance is placed upon it by law, independent of his participation..

All Moore did was to confirm it. It would have existed without the confirmation, which is practically a superfluity.

The words used for the confirmation and which apparently are expressive of a bequest, are of little or no significance, for the plain reason, that, without such confirmation, the widow would have had the usufruct by the force of the law, and conld have been deprived of it only by an adverse testamentary disposition of her husband.

The contention of the plaintiffs is that: “ Where there is a will, which diverts from the issue the disposable part of the community property — which the issue would otherwise inherit — and so the issue does not inherit the whole, the usufruct does not attach.”

This proposition is untenable and rests upon the inadmissible theory that disposing of a part, is disposing of the lohole of the thing.

In support of this view, counsel relies on the decisions of a previous Court in two cases, that of the Succession of Eorstall, 28 Ann. 198, and of the Succession of Denegre, unreported. O. B. 45, fol 529; also Grayson vs Sanford, 12 Ann. 646.

The terms of the wills of Eorstall and of Moore are not germane. The facts are different. The ruling, therefore, cannot be invoked as a precedent.

The opinion shows that Forstall had disposed of his entire share in the community in favor of his wife, while in the instant case, Moore has bequeathed to his wife only the disposable portion, confirming her legal usufruct over the remaining portion of his share in the community property, without affecting or attempting to encumber, in the least, the ownership of the two-thirds inherited by the issue.

The court used the following language :

The condition upon which the survivor shall have the usufruct is that the predeceased husband or wife shall not have disposed of his or her share; that is, the share that he or she was permitted by law to dispose of.”

A thoughtful reading of the text of the law and consideration of its spirit and purpose, shows that the disposition which is referred to as destructive of the usufruct, is not one in favor of, but one adverse to, the survivor, one which actually takes away from him, in unmistakable terms, the usufruct, in whole or in part.

Hence, where the deceased spouse, leaving issue of the marriage, and owning separate and common property, bequeaths to the survivor the disposable portion and the usufruct of his undisposed share in the community property, the disposition is valid and binding on the heirs inheriting the undisposed portion, and the same is true where he institutes the survivor his universal legatee, for, the bequest is not null, but reducible to the disposable portion and the usufruct over the undisposed share. R. C. C. 1502.

In the succession of Denegre, subsequently decided, it was held by a divided court that, as the testator had bequeathed'$10,000 to one of his daughters and directed that the rest of his property be administered for the benefit of his widow and children, he had disposed of his share in the community and that his widow was not entitled to the usufruct.

The error consists, not so much in the construction of the law, as in the interpretation placed on the will, for it is clear that, if after making the legacy, the testator had provided that his estate should, at his death, pass to his heirs, the decision would have been correct.

Such was the condition of things presented in the Succession of Schiller, 33 Ann. 1, in which the testator had willed that his estate be distributed among his legal heirs, according to the laws in force in the State. The word distribution implying a division, and, therefore, a partition, the present Court held that the widow is not entitled to the nsufruct which she claimed.

The facts in the Grayson case, 12 Ann. 646, are not analogous to those here. The widow did not claim both the disposable portion and the usufruct, and the Court did not say that she could not have both. The matter uuder consideration was the interpretation of the will. The same may be said of the ruling in the Grayson case. 12 Ann. 646.

It is a fallacy to suppose that where a person dies owning separate property besides his share in the community, the disposable portion consists only of part of that share. His succession is necessarily made up of his separate estate and of his share in the community — the disposable portion, varying according to the number of the children left — from two-thirds to half and to one-third of the entire estate.

Hence, in the present case, as the property left by Moore consists of not only his separate estate, but also his half of the assets of the community, the disposable portion is of one-third of both, as he left more than three children.

From all the foregoing, it is perfectly clear that, as Moore has not in any manner disposed, by testamentary disposition, adversely to the usufruct created by law in favor of his surviving wife, but has, on the contrary, confirmed that usufruct, it follows that his will must be maintained and his widow recognized as entitled to the disposable portion and to the usufruct over the rest of his property, to the extent to be hereafter set forth.

II.

The next question to be considered relates to the donation of securities and cash made by Moore to his wife, in New York and New Orleans.

We deem it unnecessary to review the testimony which was offered to show that Moore has never lost his domicile in New Orleans and has never acquired any in New Yoik.

We are satisfied that the circumstances under which he left New Orleans, and which, it is needless to state, were such as to inspire him with the desire of leaving the city to seek tranquillity elsewhere; that he left with the intention of establishing another domicile in some other place, but we are not convinced that he did so in New York, as is claimed. The intention and the fact must co-exist. There is nothing substantial to show that that intention was ever realized beyond a doubt.

It does not, however, follow that the donations made by Moore to his wife, while they were in New York, and subsequently here, are nullities. They must be viewed as made in New Orleans. They, no doubt, were made and accepted bona fide. The donation made in New York consists in United States bonds to the amount of one hundred thousand dollars, and that in New Orleans, of money, seven thousand nine hundred and thirty-five dollars ánd fifty-seven cents, aggregating $107,935.55.

The defendant denies that the donations are excessive, and even if such, that they can be reduced.

Surely, the widow, not being an heir, cannot be required to collate, if the donations exceed the disposable portion, but it is beyond all; dispute that the plaintiffs, who are forced heirs, have, by the law, the right to bring an action in reduction. It is manifest that, unless they enjoyed that privilege, the exercise of which is optional with them, the articles of the Code, which prohibit excessive donation, when there exist forced heirs, would be dead letters; nay, read out of the book altogether. R. O. C. 1493, et seq.

Article 1504 admits the right, saying that it can be exercised by forced heirs only, but nob by donees, legatees or creditors. R. C, C. 1502, 1703; also, H. D. Vol. Donations II. (d) 1, 5, 11, 15, 16, 18; C. N. 921, 922; Chabot, Vol. Adoption, Locré, p. 386, No. 28.

The authors are unanimous on the question, and recognize the extension of the right notonly against concurrent heirs,but even against strangers. The wife may be benefitted as much as a stranger, but not more. She forms no exception. R. C. C. 1746; 1 Ann. 237; 7 Ann. 175; C. N. 920 et seq; V. Demolombe, Vol. 19, No. 189; Pothier Don. Sec. 3, Art. 5; Louré 11, p. 451; Duranton 8, N. 316; Merlin, Vol. Inst. D’her, Sec. 1, No. 9; Aubry & Rau., Vol. 7, p. 184, § 683; Laurent, Vol. 12, No. 152. See, also, Baudry Lacantinerie, Vol. 2, pp. 165-6.

It is because of that right of action, that the law provides that in determining the question of reduction, the property disposed of inter vivos, must be fictitiously added to that belonging to the donor at the time of his death and appraised at its value then. R. C. C. 1505, 1235.

It also emphatically provides, in calculating the disposable portion, that all the property donated or bequeathed by the deceased must be included, whether given to the children, to relations, or to strangers. R. C. C. 1234.

It, therefore, follows that the plaintiffs in this suit have a standing to demand a reduction of the donations, if the effects donated were, at the death of the donor, worth more than the disposable portion.

The amount of the property inventoried nears $245,000 ; that of the bonds and cash foots some $108,000.

It is claimed that, to the .inventory should be added the separate property of the deceased, valued in the judgment at $7000.

This would swell the inventory beyond $350,000, donations included.

There is no proof in the record, that we have been able to discover, establishing the value of the bonds at the death of Moore, and there is no specific argument or prayer on the subject that can justify a decision presently of the question whether the donations exceed or not the disposable portion, so that this matter must be left open for future consideration and determination in other proceedings.

The donations, if excessive, would not, on that account, be null, but simply reducible. R. C. C. 1502.

In relation to the amount which Mrs. Moore claims to have loaned her husband, i. e., $20,000, and which was the proceeds of coupons on the bonds, and was subsequently returned by him to her, it is enough to say that, if the bonds became her property by the donation or gift made of them to her, she necessarily was likewise the owner of the fruits yielded by them, and is not accountable therefor.

It has been contended that the donations are null, because not made in the proper form; that is, by a notarial act, under Article, R. C. C., 1538.

The bonds payable to bearer were corporeal moveable effects, which could pass, without indorsement or assignment, by simple delivery, and may be considered as proper objects of a manual gift, which is not subject to any formality. R. C. C. 1539; V. Laurent, Vol. 12, pp. 351-2, Nos. 280 and 281.

III.

The third subject to be considered is the claim of the succession against the community, for the separate property of Moore, owned by him anterior to his marriage, and which was used for the benefit and advantage of the community.

The claim is stated to amount to $20,000.

The district judge, however, did not recognize it to be so large. He admitted the claim for $7000 only.

The plaintiffs have not prayed, by answer to the appeal, any increase of that allowance.

The appellant has not shown in what particular it is erroneous, and the evidence does not satisfy us that the finding of the lower court, in that respect, ought to be disturbed.

The judgment appealed from has recognized Mrs. Moore as a creditor of the community for $2000.

The appellees have not complained of this allowance, and cannot expect any amendment on the subject.

The condition of the transcript and the absence of any pointed demand for any specific relief, as far as.figures go in all cases, particularly as concerns the reduction of the donations eventually, do not permit us, as already intimated, to arrive at any particular result in that regard.

We will conclude in stating the manner and mode in which, keeping in view the matters involved in the present controversy, the Succession of John T. Moore ought to be and must be settled.

The mass of the succession must be composed of the separate property of the deceased, of his share in the common property, and of the value of the'effects donated at the time of his'death.

After payment of the debts and charges against his estate, including the legacies and the $2000 found in favor of Mrs. Moore, the net revenue must be divided into three equal parts.

The first third should be composed of the separate property of Mr. Moore, and in addition of such portion of his share in the community as may be necessary to complete that third.

Out of that third must be deducted the two legacies of $10,000, and the residue of the third will accrue to Mrs. Moore in full satisfaction of the legacy of the disposable portion made to her by her husband, including the value of the effects and money donated to her by him in New York and in New Orleans, should there remain a deceit between the amount of the legacies added to the donations and the third of the entire estate, the deficit will have to be satisfied out of the share of the deceased in the community; but should, on the contrary, the amount of the legacies added to that of the donations, encroach beyond the third, on the remaining two-thirds, this surplus shall be forfeited by the widow, and she would take only the difference between the legacies and the amount of the third R. C. C. 1510.

Next, Mrs. Moore will be entitled to the usufruct of the remaining share of the deceased in the community during her widowhood, under the law, as confirmed by the will.

Finally, the portion of the estate of the deceased as shall be subjected to rke usufruct of Mrs. Moore shall be deemed as the légití/me, accruing in naked ownership to the nine children, as forced heirs of the deceased, share alike, the plaintiffs herein, viz: the minors, Flanagan and Mrs. Moore, Jr., jointly, to be entitled to two-ninths, and the minor, Hickey, to one-twenty-seventli of that portion.

Por these reasons:

It is ordered and decreed that so much of the judgment appealed from as recognizes Mrs. Moore as a, legatee for the disposable portion, and as a creditor for two thousand dollars and the succession as a creditor for seven thousand dollars, be affirmed, and that in all other respects it be reversed;

It is further ordered and decreed that the donations made in New York and New Orleans be recognized as valid, the same to be allowed to Mrs. Moore in part satisfaction of her legacy of the disposable portion, and in case the same exceed that portion, that the surplus be declared forfeited by Mrs. Moore, to be made good by her to the succession, it being understood that the legacies of ten thousand dollars are to be first deducted from the disposable portion ;

It is further ordered and decreed that Mrs. Moore be declared entitled, during her widowhood, to the usufruct of the share her husband inherited by the issue of their marriage, as shall remain after satisfaction of the disposable portion ; and,

It is further ordered and decreed that the plaintiffs and the other children and grandchildren be recognized together as entitled, in their capacity of forced heirs to the deceased, tó the naked ownership of the two-thirds or portion of his share in the community as is subjected to the usufruct of Mrs. Moore, or the minors, Sullivan and Mrs. Moore, Jr., to one-ninth each of said same share, and the minor, Hickey, to one-twenty-seventh thereof.

It is further ordered and decreed that the appellees pay costs of appeal.

Mr. Justice Watkins dissents on the question of usufruct and concurs in other respects.

On Application por a Rehearing,

The salient complaint is levelled against the allowance of the disposable portion and usufruct, claimed by the widow.

The brief in support is a mere repetition of what had been pre_ viously said and written on the subject, on behalf of the plaintiffs and an ingenious criticism of the opinion in the ease attacking it on matters of secondary importance, without, in the least, impairing its solidity and correctness on the main issue.

I.

The petitioners rely explicitly on a decision which we had not thought proper to notice specially, and which, they con tend, has an immediate favorable bearing; that is the case of Grayson vs. Sanford, 12 Ann. 646.

In that suit, it appears that the testator had bequeathed to his widow the usufruct of his property, and in case of a suit for a partition by any of his children, all the property he could dispose of by law forever.

There was brought such suit and the widow claimed the usufruct, but not the disposable portion.

The court said that the principal question was, whether she was entitled to the usufruct or to the disposable portion, and that the solution of the issue depended on the interpretation of the will.

The question did not arise, whether the widow was entitled to both the usufruct and the disposable portion, for the plain reason that it was not the intention of the testator that she should have both, but either the one or .the other.

He willed her the usufruct and eventually the disposable portion.

It is true that the court gave her the disposable portion — i. e., one-third — there being more than three children ; but it does not appear that she ever claimed that portion included the usufruct over the share of the deceased in the community, and hence the court did not pass upon it. It could not have rendered judgment ultra petitum, or for more than was at issue.

There is to.be found no precedent in the reports in which both the usufruct and the disposable portion as known previous to the passage of the act of 1844 were claimed by the surviving spouse.

The rulings in 9 Ann. 398 and in 13 Ann. 424 have no bearing- upon the present controversy. The first relates to matter within the first provision of the act, and the second has already been met in the opinion.

The construction placed by the petitioners on the purport and tenoi of the act of 1844 or Article R. C. C. 916, is the result of a confusion of ideas on the subject. They seem to consider that certain articles of the Code of 1825 form part of the organic law and are not susceptible of repeal, or amendment by the law-making power; but such is not the case. The Legislature can amend laws.

The act of 1844 has surely modified those articles, so that the rights which the surviving spouse had, when there existed a community with the deceased, prior to that legislation, are broader eventually to-day, and that the same extend over the share of the deceased in the community in the shape of a usufruct, for a time, varying according to certain circumstances stated, subject to the right of the predeceased spouse of disposing by will, so as to defeat that usufruct.

We have not held that the share constituting the legitime reserved to forced heirs has been decreased, or may be encumbered by a testator.

The share accruing to such heirs is the same to-day as it ever was, with this difference, that it is encumbered, not by the testator, but by the law, with a usufruct in favor of the surviving spouse iu community when the predeceased has not by his will determined otherwise.

We hold that a spouse in community can legally bequeath to the survivor the disposable portion of his or her estate, as it always was known, and may confirm in his or her favor, the asufruct provided by law, either by remaining silent or by expressing himself clearly on the subject, the language used, whether a bequest or a ratification, being-immaterial.

II.

After a review of what we said on the question of the $20,000, included in the $27,630.55, and claimed by Mrs. Moore for as much reimbursed to her by her husband, in satisfaction of coupons lent him by her, we think it preferable that the whole matter be left ppen for future consideration, in the proceeding'which the heirs may bring against Mrs. Moore for an account.

Our opinion will, therefore, be accordingly considered as silent on the subject. The same may be said of that portion of the decree which alludes to the New Orleans donation.

This disposition embraces the surplus of the $20,000, namely the $7635.55, which will have also to be accounted for.

III.

We have not considered the $10,720.58 to which the petition for a rehearing refers, as having been deposited in bank to the credit of Mrs. Moore, after October 20, 1885, and which are said to belong to Moore or his succession. We did not deem them at issue by the pleadings. The door remains open for any claim which the plaintiffs may have on this or any other subject not expressly passed upon-, when they will call on Mrs. Moore for an account of anything which is not hers.

IV.

Neither did we allude, for a like reason, to the city consolidated bonds alleged to have been taken from the bank box, between Moore’s death and the day of inventory by Mrs. Moore, in satisfaction of her claim of $2000, which the plaintiffs admit to be due her. The liability of Mrs. Moore for these bonds remains also a matter for future consideration.

V.

Neither did we concern ourselves with the alleged donation made to Mrs. Gibbons, a daughter of Moore, as there was no issue on the subject. Necessarily, if the donation was made and is subject to collation, it will have to be deducted from the disposable portion, when ascertained.

VI.

It was a matter of indifference, for the purposes of the opinion, to consider the value of the United States bonds at Moore’s death.

All effects donated, to whomsoever, or illegally withheld, will have to be fictitiously or actually added to the property left by Moore and ’ in actual existence, as his. at the time of his death, and will have to be appraised at their value then, in order to ascertain the disposable portion.

VII.

Finally. We see no reason to change the conclusion previously reached, that the bonds, which are payable to bearer, and the title to which is transmissible without any indorsement or assignment by mere delivery, are not subject to any formality, save that of tradition and acceptance.

To make the alterations mentioned, it is unnecessary to .grant a rehearing.

It is, therefore, ordered and decreed that the original judgment herein be amended so as to eliminate from it such portion as refers to any donation made in New Orleans, and that, in other respects, it remains undisturbed.

Rehearing refused.

Mr. Justice Fenner files a concurring opinion.

Mr. Justice Watkins adheres to his original opinion on the question of usufruct and concurs in other respects.

Watkins, J.

I make the following extract from the brief of Mrs. Moore’s counsel, viz:

“John T. Moore died on 29th March, 1886, in this city, leaving nine children, or their descendants, and a surviving spouse, the mother of said children j all Ms property belonged to the community which had subsisted between him and his surviving widow, Agnes Jane Bvrne, to whom he was married in 1845.
“ The plaintiffs in these suits are the minors Flanagan, represented by their natural tutor, who had married one of the daughters of the deceased, and the minor Hickey, represented by his natural tutor, who had married another daughter, and Julia, another daughter of the deceased, who married John T. Moore, Jr.
“ All the unmarried children of the deceased, and also Mrs. Gibbons, a married daughter, living in St. Louis, adhere to their mother in this controversy.
“ John T. Moore died testate, having executed a will dated 20th October, 1885, and a codicil dated 27th February, 1886.
“ The will is in these words : All the property I am possessed of consists of community property. I give, devise and bequeath unto my wife, Agnes Jane Byrne Moore, the usufruct during her natural life of all the property I may die possessed of, community or not community. I hereby appoint my said wife executrix of this my last will and testament, with seizin of my entire estate, and without any bond or security whatever, and without an inventory of my estate.’
“ The codicil, after giving a special legacy of $5000 unto Mrs. Burke, a sister of the deceased, and a special legacy of $5000 to the Society of St. Yincent de Paul, proceeds as follows:
“ ‘ I-give and bequeath unto my said wife, Mrs. Agnes Jane Byrne Moore, the disposable portion of all the property, real and personal, movable and immovable, in whatsoever the same may consist, and wheresover situated, I may own or possess at the time of my death, and to that end I constitute my said wife my universal heir and legatee.
“ ‘ 1 do hereby declare that this is a codicil to the last ivill and testament, already referred to, as having been made by me by act before W. J. Castell, late a notary public in this city, on 20fch October, 1885, whieh said last loill and testament shall be and remain in full force and effect.''
“Tbe plaintiffs in these cases demand the immediate possession and enjoyment of their share of the succession of the deceased, free from the usufruct of the surviving widow.”

The act of 1844 in relation to the survivor’s legal usufruct of his share in the community, was, in its revision in 1870, incorporated into the Civil Code as Articles 916 and 917, and the former is couched in these words, viz:

“ In all cases, when the predeceased husband, or wife, shall have left issue of the marriage with the survivor, and shall not have disposed, by last will and testament, of his or her share in the community property, the survivor shall hold in usufruct, during his or her natural life, so much of the share of the deceased in such community property as may be inherited by such issue,” etc.

The question for decision is: Whether or not the deceased disposed, by last will, in favor of his wife, “ of his * ” share in the community property.”

What was the share in the community property,” of which he could have disposed by last will in favor of his surviving widow — his entire estate consisting of his half of the community property.

His will bequeathed, in her favor, “ the disposable portion of his property.” Now, inasmuch as his half of the community property was his estate, he, necessarily, bequeathed one-third of his half of the community property, and he could not have validly bequeathed her more. Ergo, the deceased did dispose, by last will, “ of his share in the community property” — i. e., the share in it of which he could legally dispose by last will.

What is the necessary result ?

In my opinion it is, that the surviving widow cannot “ hold in usufruct so much of the share of the deceased in such community property as may be inherited by such issue.”

It must be carefully observed that the phrase, “share in the community property,” is repeated in the cited article, and as repeated, one serves to interpret the other

Paraphrase, and state the sentence affirmatively, thus:

In case the predeceased husband shall have left issue of his marriage with the survivor, and shall have disposed, by last will, of “his share in the community property, the survivor shall (not) hold in usufruct * * so much of the share of the deceased in such community property as may be inherited by such issue.'1'1

Now, I respectfully submit, that, if the true intent of the Legislature was, and the true meaning of the law is, that, in order to have the effect of destroying the legal usufruct of the survivor, the last will of the deceased should have disposed of his half of the community property, the second clause of said article would be rendered nugatory and meaningless, for the obvious reason that there would remain nothing “ to be inherited by such issue.”

The law contemplated that the bequest should leave something that might “be inherited by such issue.” The law would have been inconsistent with itself, if it were otherwise, because “ the issue of the marriage ” are forced heirs.

To my thinking, the conclusion is irresistible, that when, as in this case, the deceased husband, leaving more than three children as “the-issue of his marriage with the survivor,” has bequeathed to her the disposable portion of his estate — it being one-half of the community property — the remaining two-thirds of such half is liberated from the-widow’s legal usufruct, and passes to “ such issue” in full ownership.

This two-thirds is “ so much of the share in such community property” as would remain after the widow’s one-tliird is subtracted therefrom ; and is “ so much of the share in such community as may be inherited by such issue.”

I understand that the question here was squarely presented, and as-squarely decided by the Court, in Forstall vs. Forstall, 28 Ann. 197, to which reference is made in the opinion of the Court.

The Court say: “This is a controversy between the surviving widow and universal legatee of Edmond J. Forstall and the children,. the forced heirs, in regard to the share of the deceased in the community property; the widow contending that she is entitled to one-third, the disposable quantum, and to a usufruct of the two-thirds reserved by law to the numerous heirs of the deceased; and the heirs contending that they are entitled, in full ownership, to the two-thi/rds reserved to them by law.n
* # is*1***#
Edmond J. Forstall disposed in favor of the surviving widow by last will and testament, bequeathing to her his share of the community property. As there are more than three legitimate children, the legacy must be reduced to one-third, and the heirs are entitled, in full ownership, to two-thirds of the próperty of their father.
“ The surviving widow is not entitled to the usufruct of this two-thirds, because the deceased disposed, by last will and testament, of his share of the community property.
-» * * * * * * * * *
“ Where there has been no testamentary disposition of the disposable share of the predeceased husband or wife in the community property, the survivor shall be entitled to a usufruct during his or her natural life of so much of the share of the deceased in such community property as may be inherited by such issue. The condition upon which the survivor shall have a usufruct is, that the predeceased husband or wife shall not have disposed of his or her share — that is the share that he or she was permitted by law to dispose of.”

That, case was argued and decided on the theory that the legacy of the widow was not only reducible, but reduced to the disposable quantum. That was all she claimed under the will. As thus presented the instant case is precisely the same.

The argument is made in support of the defendant’s contention that the entire share of the deceased is meant that the deceased could have bequeathed to his children his half of the community property, and that such bequest could dissolve the survivor’s usufruct and no other.

But I deny that the deceased could have made such a will. An excessive donation mortio causa is valid only for the disposable quantum, because the law vests the remainder in the forced heirs.

In the succession of Schiller, 33 Ann. 1, this court considered and interpreted a will couched in these words, viz:

“ It is my will and desire that my debts be paid, and that my estate be distribtited among my legal heirs, according to the laws now in force in Louisiana.”
The Court says : “ The question presented simply is:
“Whether, by the phrase used, Schiller has or not disposed of Ms share in the community. If he has, his three children have inherited his half therein free from their mother’s usufruct. If he has not, they have inherited it subject to that usufruct during widowhood.
* * # # * * # * *
“ It is manifest that he has disposed of his estate, that is, of all the property belonging to him at his death, in favor of certain persons, and in certain proportions. Thatproperty consisted of Ms half interest in the community between him and Ms wife,” etc.

The court held this language to mean that the deceased’s one-half of the community property “ should accrue unburdened, and be delivered at once, to his three children.” Bat they did not say that such one-half passed to them by the will. On the contrary, they do say:

“ The children inherit the naked ownership of two-thirds of the one-half of their father in the community property by the effect of the law,they inherit the remaining one-third, and the enjoyment of the entire half, to the exclusion of their mother’s usufruct, by the effect of the will of their father, who, by abstaining from making any will, could have permitted his wife to enjoy such half as usufructuary during her widowhood.”

In this opinion the following propositions are distinctly announced, viz:

1. That the will of the deceased disposed of his share in the community property.

2. That his estate was his share in the community property.

3. That the three children inherited two-thirds thereof by the effect of the laxo.

4. That they inherited the remaining one-third by the effect of the xoill.

5. That the children were entitled to the enjoyment of the half to the exclusion of their mother’s usufruct.

These conclusions, in my opinion, are correct, and confirm those I have herein expressed.

They are in exact accord with those entertained by our predecessors, as found reported in Grayson vs. Sanford, 12 Ann. 647, in which the Court said :

“ The principal point at issue in this cause is, whether the surviving widow is entitled to the usufruct of the half of the community belonging to the estate of her deceased husband, or whether she shall take the portion thereof which her husband could dispose bylaw.”

The intimation is clear that she could not be allowed both.

Thereupon the court decided that “ the. rights of the widow are fixed by the will to the disposable portion,” and declared her entitled to one-hálf of the community property, in her own right, and to one-third of her deceased husband’s share in said community ; and the legal heirs —of whom there were seven — to the remaining two-thirds of same, in full ownership and to a decree of partition.

That opinion describes with precision and accuracy the claims of the forced heirs of Mr. Moore, and clearly defines their legal righls. It is my opinion that the legal usufruct of his widow, their mother, was broken by her acceptance of the benefits of his will, and that his forced heirs are entitled to be put in to immediate possession of their inheritance.

For these reasons I cannot concur in this part of the opinion and decision of the majority.

Separate Opinion.

Fenner, J.

Under the light thrown on it by the able brief for rehearing, I have given additional consideration to the interesting question touching the usufruct. To my mind it is perfectly clear that articles 915 and 916 of the Civil Code announce the policy of the law concerning the disposition of community property at the death of one of the spouses. That policy is, that the survivor shall have the usufruct of the share of the deceased therein in two cases, viz: .1. Where the deceased has left no ascendant or descendant. 2. Where he has left descendants, issue of the marriage with the survivor, in which case the usufruct extends only to the portion inherited by such issue.

But these, like most other provisions for legal inheritance, are subjected to the power of testamentary disposition by the decedent. They are based upon the assumption that the legal dispositions conform to the natural desires and wishes of the deceased in absence of any expression of a contrary will. But when he has exercised the testamentary power, and has not left his property to be disposed of by the law, but has himself directed how it shall go, so that those who take it, take under the will and not under the law, then the will must be executed and so much of the community property as passes uuder the will passes fiee from the usufruct. Hence the.law says that the usufruct shall accrue only when the decased “ shall not have disposed by last will or testament of his or her share in the community property.” Why f Because when he has thus disposed of his share, he has left nothing for the law to operate upon, but has subjected the whole to the domination of his own will. Even if the testamentary donation be excessive and be reducible to the disposable portion, such reduction enures only to the benefit of the forced heirs, and not of the surviving spouse who stands deprived of the usufruct because it was the plainly expressed will of the testator that she should be deprived of it.

But when the deceased has disposed of only part of his share, even though that part be the whole disposable portion, he leaves the balance to be disposed of by the law, free from any expression of his own will in reference thereto, and the issue of the marriage, inheriting solely under and by virtue of the law, must take subject to the burden which the law has imposed upon it, and which the testator has not interfered with, viz: the usufruct.

In this case the testator has added a clear expression of his own wish that his wife should enjoy the usufruct accorded by the law of so much of the share of the deceased in such community property as may be inherited bysuch issue.”

It is said, however, that this trenches upon the legitime of the forced heirs, by adding to the whole disposable portion the usufruct of the rest. Suppose it does. It is the law which so operates, and the légitime is a mere creature of law which it may alter at pleasure.

I am unable to understand why the policy of the law which attaches the usufruct to the whole when there is no will, should not equally apply to the residue when there is only a partial will, arid still less am I able to discover any judicial authority to add to the plain legislative expression, “ his or her share in the community,” the words or any part thereof,” as claimed by counsel for appellees.

It would require a strong current of authority to overcome my clear convictions on this subject.

I find but a single decision directly in point and that is Dénegré’s case, which is unreasoned and unreported.

Lee’s case, 9th Ann. 398, arose under Article 915, and as the decedent left an ascendant, the article did not apply.

Clarkson’s case 13th Ann. 524, did not concern these articles of the Code at all.

Schiller’s case, 33 Ann. 1, harmonizes fully with the views above expressed because we held that the whole estate was disposed of by the will.

Grayson vs. Sanford, 12 Ann. 646, though containing Meta hostile to our views, may be reconciled on the ground that it was doubtful whether the will did not intend to deprive the widow of the usufruct in case the contingency arose in which she took the legacy of the disposable portion.

I therefore adhere to our original opinion on this point.