121 So. 868 | La. | 1929
David J. Manson died, leaving a will, bequeathing $10,000 to each of his two brothers, $1,000 to the Home for the Incurables, the remainder of the disposable portion (which was one-third) of his estate to one of his daughters, as an extra portion, and the remainder (which was two-thirds) of the estate to his three forced heirs, a son and two daughters, share and share alike. He *288 then undertook to impose the following condition upon the bequest of the reserved portion (two-thirds) of the estate to the three forced heirs, viz.:
"It is my wish that my estate, except my disposable portion, be held intact and not divided for five years from the date of my death."
The testator appointed the Hibernia Bank Trust Company executor of his will, with full seizin and without bond.
When the executor had paid the debts of the succession, and had delivered the legacies to the legatees, respectively, to the extent of the disposable portion, the son and daughters of the testator demanded their legitime, or reserved portion, as forced heirs. The executor refused to deliver the legitime, or reserved portion, to the forced heirs, on the ground that the stipulation in the will that the reserved portion should remain intact and be not divided for five years created a trust, and made the executor in fact the trustee, according to Act 107 of 1920, p. 151. The heirs then sued the executor for possession of their legitime, on the ground that the testator's stipulation that it should remain intact and be not divided for five years was null, according to the decisions of this court construing articles 1299, 1300 and 1301 of the Civil Code. The court below decided in favor of the executor, and dismissed the suit. The heirs have appealed from the decision.
Article
In Succession of Le Blanc,
"The articles [1300 and 1301] quoted do not purport to enlarge the authority which the law confers upon executors, or to authorize them to withhold from the heirs the possession of property inherited by them, even though they may not partition it. On the contrary, they evidently contemplate that the heirs shall be put in possession, and, when that happens, the executor becomes functus officio; and, whether the heirs, against whom the prohibition is directed, regard or disregard it, is a matter with which he would appear to have no concern."
The attorneys for the executor in this case concede that the stipulation in Manson's will, that the reserved portion of the estate *290
should remain intact and be not divided among the heirs for five years, is not binding upon them, and that the executor must deliver to them their legitime, or reserved portion of the estate, if the stipulation in question cannot be construed as creating a trust, and as making the executor a trustee, for five years, under authority of Act 107 of 1920. In support of the argument that this stipulation — for keeping the reserved portion of the estate intact and indivisible for five years — created a trust, and made the executor a trustee, the attorneys for the executor cite Wilbert v. Wilbert,
The judgment appealed from is annulled, and it is now ordered, adjudged, and decreed that the Hibernia Bank Trust Company, executor, deliver the reserved portion of the estate of David J. Manson, deceased, to his son and two daughters, the plaintiffs herein. The costs of this proceeding are to be paid out of the estate of the deceased.