18 La. 95 | La. | 1841
delivered the opinion of the court.
This case cannot be distinguished from that of the same plaintiffs against P.- Soúlé, decided a few days since (ante 21). The facts are the same, and it must be governed by the same principles and reasoning. Aá a petition for a re-hearing has since been filed, it is proper to' remark that the main grOurid Upon which that suit was determined was the construction vre
As to the construction to be given to the will of André Bernard, we have again attentively considered that instrúment, and can come to no other conclusion than that we have expressed. It is true that there are two sepárate clauses in it, one in favor of the substituted heirs of the wife, thé other in favor of those of the husband ; although by the place they occupy ih the will, these clauses cannot be sáid to' be members of the same sentence, they can, in out opinion, be viewed only as parts of the same disposition, and according to every rule of construction must be explained by each other. These-testators
We have been referred to a case reported in 8 La. Rep., 233, in which it is said that this will was annulled at the suit of the heirs of the widow Bernard, as containing a prohibited substitution; that is: one which prevented the alienation of the property. It is doubtful whether that case should he of any authority whatever in this, or even should he binding on the rights of the parties to it. The suit was brought against an attorney for absent heirs ; no enquiry was made into the nature •of the substitution; both parties admitting that it was one prohibited by the laws in force at the death of the wife in 1834. The opinion of the court was asked on a different point, hut this they refused to do ; they said, “ as both the appellant and appellees admit the disposition of the property by the will is a substitution which is now forbidden by law and ceased to be legal in this country on the adoption of the Civil Code in 1808, it follows that the Court of Probates decided correctly in annulling and setting aside the will on the ground that it contained a substitution.” As was intimated in the opinion delivered
It is therefore ordered that the judgment of the District Court be affirmed with cost.