25 La. Ann. 602 | La. | 1873
Lead Opinion
David Hasley died, in Ouachita parish, on the ninth October, 1873. Phinetta B. Hasley, the defendant, is his widow; and the plaintiffs are children, by a former marriage, and forced heirs .of David Hasley.
“ At Home, March 4th, 1870.
“ I this day make my will.
“ I want my wife to keep and maneg all of my estate both reil and pursnel deuren her lif time and be lowed to sell eny of the land for not les than the apprsment and I appoint my wife administrate!’.
“ David Haslet.”
The plaintiffs sue to annul the probate aud to have the will declared void, on the following grounds :
That the document is not a will, “ as it does not convey anything to the supposed universal legatee, and is contrary to the laws of this State, containing a substitution and fidei commissa clause contrary to law; that plaintiffs are the sole forced heirs of David Hasley, and that said document, so pretended to be probated on the fifteenth of January, 1873, attempts to deprive them of their legitimate portion secured to them by law; and that said pretended will is void for want of meaning, and that the probate thereof is null and void.”
The probate judge decided that the will was null for want of meaning, and annulled the probating thereof.
The defendant has appealed.
We observe that the grounds, upon which the will is attacked, are inconsistent, but we will proceed to notice them.
There is clearly no substitution. Rachal v. Rachal, 1 R. 115; C. C. 1520. Nor do we think that there is a fidei comtmsswm. Nimmo v. Bonney, 4 R. 176; 3 An. 494.
The Code, in abolishing substitutions and fidei commissa, has for its •object the prevention of the evil of tying up property in the hands of individuals, for a length of time, and placing it out of commerce. The reverse of this appears to have been the intention of the testator in this case. Substitutions and fidei commissa are never presumed. Unless the will can not be understood otherwise than in the sense of establishing a substitution or fidei eommissum, it will be maintained. “A disposition must be understood in the sense in which it can have effect, rather than that in which it can have none.” C. C., art. 1713.
And the words of a will, like those of a law, “ are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular •use of the words.” C. C. article 15.
Construed by these rules, we are bound to hold that the testator intended to give the usufruct of his estate to his wife.
The plaintiffs’ counsel contends that the words “ keep and manage,’
It appears that on the day after David Hasley made his will, Mrs. Hasley went before a notary and made her will' by public act, as she-could not write. In that will she gave the use and usufruct of all her property to her husband during his life, and appointed him her-executor.
We think it is a fair inierence to be deduced from the facts, that the making of said wills was the result of conference and a mutual understanding between the two spouses ; that they should make reciprocal testaments in favor of each other, giving the survivor the use and usufruct of the testator’s property.
The will of David Hasley has all the formalities of an olographic testament, and it is capable of being understood in the manner interpreted by us. It is our duty therefore to maintain its validity.
It is therefore ordered and adjudged that the judgment of the lower-court be set aside, and that there be judgment in favor of the defendant, and against the plain tiffs,, rejecting their demand with costs.
Rehearing
On Application por a Rehearing.
The application for rehearing is refused. The only question under the written agreement in the record before the court a qua and this court for decision, was the validity or nullity of the will. Our opinion, and decree refer to that question alone.