| La. | Sep 15, 1836
delivered the opinion of the court.
This case has been submitted to us on points, and presents the single question, whether the plaintiffs, as heirs at law of Toussaint Arceneaux, deceased, are entitled to recover the whole or any part of his succession. The defendant claims as usufructuary under the testament of the deceased. It appears that she is the survivor of her husband, to whom, jointly with herself, the usufruct was bequeathed “during their lives.”
The plaintiffs rely upon articles 529 to 531 of the Louisiana Code to prove that usufruct is divisible, and that in this case, at least as to one. half, it terminated at the death of the husband, and that their right then altached. These articles seem to establish the principle that there may be a joint usufruct terminating at different periods, as to the several usufructuaries. But in this case we are to be guided by the probable intention of the donor, as expressed in the testament. The expression “during their lives” would perhaps leave it doubtful whether the testator meant to create a right of survivorship in favor of one of the persons named as legatees. But this ambiguity appears to us to be clearedi up by other clauses in the will. The testator goes on to say, cc after the death of my brother Joachim, and the death of his wife Aspasie aforesaid, my property will return to those that may be legally entitled to the same.”
We are of opinion that these expressions indicate, on the part of the testator, his intention that his other heirs, the , . , . . , plaintiffs, shall have no right to enter upon the enjoyment bis estate until the death of both the usufructuaries, Having failed to show that their right has yet attached, we U O •! s think the court did not err in rendering judgment against
It is, therefore, ordered, adjudged and decreed, that the judgment of the Probate Court be affirmed, with costs.