The opinion of the court was delivered by
Miller, J.
This appeal is by Mary Tobin Stempel, guardian of her minor children, from the judgment of the lower court against her in the suit to annul the will of Hester MeOan, the grandmother of the children, the issue of the marriage of Mary Tobin Stempel with Oharles P. MeOan, the son of the testatrix.
The will assailed is as follows:
“I give all I may die possessed of to my grandchildren, Kate Elizabeth MeOan, Fanny Tobin MeOan, David Ohambers MeOan, Hester Margaret MeOan and Oharles Patters on MeOan, the children of my. deceased son, Oharles P. MeOan and Mary Tobin, the giving to them to be conditioned on their attaining the age of majority.
“ In case either of them dies be ore attaining the age of majority, then the part or portion given as above conditioned to accrue to the survivors, likewise conditioned on such survivors attaining the age [156]*156of majority, the true intent being to make my said grandchildren my universal legatees upon condition that they reach majority.
“I desire that during the minority of my said grandchildren, the money, property and values above given them conditionally be administered by my friend, Harry H. Hall, of this -city, and my husband, David 0. McOan, of this city, without security.
“The foregoing person or persons who may act are to invest said amount in good securities or properties and to apply the revenues, so much thereof as may be necessary,.to the education and support of my said grandchildren. They are to administer the same for the benefit of said grandchildren and to pay over the same to them on the happening of the condition on which my gift to them is based.
“I expressly exact as a condition that none of the property or values given by me to my grandchildren be ever in any way administered during their minority by their mother or by her husband.
“ In the event of my said grandchildren all dying before the happening of the condition by me above mentioned, that is they or any of them reaching the age of majority, then I institute as my universal legatee my husband, David 0. McOan.
“ I institute and appoint my husband, David O. McOan, and Harry H. Hall my testamentary executors with seizin and without security.”
The husband of the testatrix died before her.
The grounds on which the will is assailed are that its conditions are contrary to law and public policy, and that it contains substitutions and fidei eommissa, prohibited by law. The argument against the will is directed to the institution of the five grandchildren as legatees, conditioned they attain majority, in the event of the death of any before, their shares to accrue to the survivors, still conditioned they attain majority; the property during the minority of the grandchildren to be administered by Harry H. Hall and the husband of the testatrix, and to be delivered to the legatees on the happening of the condition on which the legacy depends. The contention if successful, would give the property to the legatees, they being the legal as well as testamentary heirs of the testatrix. The prayer of the petition is that the will be annulled, that the children be recognized as the legal heirs, and as such be put in possession through their guardian. The argument for the will upholds its conditions; denies it contains any substitutions and insists that the dispositions constitute the con[157]*157ditional legacy permitted by our law, accompanied by a provision equally valid, it is claimed, for the administration of the property by the executor until the majority of the legatees.
Our law prohibits substitutions and fidei eommissa distinct, but bearing resemblance, and both, to exclude any doubt, fall within the prohibition. The substitution in acts of last will is to bequeath property to one or more, to be succeeded in the enjoyment of the property by others designated by the testator. The fidei eommissum is to bequeath property to be held for and delivered to another. In the substitution the successive legatees each have an interest in the property or an advantage tobe derived from it. The fidei eommissum is a mandate or trust with no interest conferred on the legatee charged only to deliver. ‘ ‘ Every substitution is a fidei eommissum, but every fidei eommissum is not a substitution.” 1 Dalloz, 655; 1 Troplong, pars. 86, 130, 101, 102; 6 Toullier; Ducloslange vs. Ross, 3 An. 432. The language of the Code is that substitutions and fidei eommissa are and remain prohibited; every disposition by which the donee, heir or legatee is charged to preserve for, or return a thing to a third person, is null with regard to the donee, heir or legatee. The Code excepts the disposition by which the testator names another to take when the legatee first named does not take. This is called the vulgar substitution and not prohibited. There is the permitted disposition, but at the same time, limitation on the power of last will when the Code declares that the testator may give the usufruct to one, and the title to another. The Code also declares that illegal impossible conditions, and those contrary to morals, shall be reputed not written. Civil Code, Arts. 1520, 1521, 1522, 1519; Ducloslange vs. Ross, 3 An. 432; Beaulieu vs. Ternoir, 5 An. 480.
The Napoleon Code, with some exceptions, forbade substitutions. Arts. 896, 897. Besides, the jurisprudence under that Code withdrew from the prohibition, dispositions by which the legatee, without interest, was merely the medium by which the property was to be delivered to another, or, in other words, when the legatee was a mere mandatary. 1 Dalloz, p. 655, No. 12. But in these dispositions the distinction prevailed of such as were to be executed in the life of the “ grevé ” or person charged with delivery, and those not to be executed till his death. These last fell within the prohibition. 5 Toullier, pars. 12, 21, 48. With these exceptions and others, unnec-cessary to be discussed, the Napoleon Code, like ours, prohibited the [158]*158disposition by- which property was bequeathed to one or more, to be preserved for and delivered to others. Nor is it at all material under the Napoleon Oode or our own, that there should be the express charge to preserve and render, stated in the Oode. Where the property is bequeathed to one, to be succeeded by another, or others, there was the substance of all that the express charge to render could convey. 5 Toullier, par. 48. The mischiefs of the prohibited substitutions are obvious. There is no ownership, that is full ownership, vested at the death of the testator, with the inevitable result that inalienability is impressed on the property, putting it out of commerce; there is a successive order of heir-ship dictated by the testator to operate after his death when man’s control should end; this order is to supersede the law of inheritance established by public policy for all men, and if permitted, substitutions would tend to accumulate property ia the hands of those the caprice of the testator might prompt him to favor, according to seniority of birth, survival, of sex or of consanguinity, or other test of heirship the testator might choose to adopt. Our law is marked by the simplicity of the titles by which property is held, and is utterly opposed to the suspended and uncertain ownership incident to substitutions or the system of entails of the common law; it is our policy that ownership should vest at the death of the testator, so that there should exist no restraint on alienability of property; and the theory of our Oode is that property at the death of the owner must be transmitted according to the modes prescribed for holding property, and not by novel and complicated tenures devised by testator. Whenever these features have been found in testamentary dispositions, our court has stricken them with nullity, and has been guided by substance and not the mere form of the testator’s words. Civil Code, Arts. 1520, 1522, 1519, 488, 490, 491, 492 et seq., 533, 641 et seq., 886 et seq.; Cloutier vs. Lecomte, 3 Martin, 485; Farrar vs. McCutcheon, 4 N. S. 45; Arnaud vs. Tarbe, 4 La .504; Henderson Case, 5 An. 470; Franklin Case, 7 An. 416.
The argument to sustain this will is, that the property is not left to one or more to be transmitted to others, or in other words there is no successive order of heirs the type of the prohibited substitution ; and the legacy is sought to be maintained as conditional in its character recognized by our Oode. Oode, Arts. 1698, 2030; 5 Toul-lier, par. 45 et seq; Journal du Palais for 1885, p. 520, and other [159]*159authorities are cited from the French jurisprudence. The conjoint legacy gives to the survivors the shares of the legatees who die before the testatrix, when the property is bequeathed as an entirety without designation of parts. But this right of survivorship ends with the testator’s death. The property then vests absolutely in the surviving legatees, and as owners in common they hold, subject to the right of any of them to compel a division, a right which even the testator can not impede, except for a limited period. Oivil Code, Arts. 1299, 1300, 1301. The French authorities tend, we think, to recognize as continuing beyond the testator’s death the right of survivorship that exists in the conjoint legacy.' They maintain these dispositions when it is possible to hold that each of the legatees named conjointly, under a will conditioned that the survivor shall take the shares of deceased legatees, is to be deemed a usufructuary. 6 Toullier, par. 46, pp. 69, 61. On the same line we appreciate the authorities cited by defendants from Laurent, Fuzier-Herman and others. Defendants’ first brief, p. 19 et seq. If we could read a line of this will as creating any usufruct in favor of any of these legatees, the application of these authorities would be more obvious. The will excludes any such usufruct. A tenure of property by several minors, with a right of the survivor to take the shares of those who die, would be deemed a novelty in Louisiana. All can understand the conjoint legacy and its effect when the testator dies, in giving an absolute title. But that he can create any such conditional or qualified ownership to subsist after his death, is not of easy appreciation. The French authorities admit a close resemblance to the prohibited substitution in the cases they cite in this connection. We are far from satisfied that any such disposition can be supported under our jurisprudence. A tenure by which, after the death of the testator, his property is to be held under the condition it is to go to the ultimate survivor, if any, of a number of legatees, if they attain majority, finds no place in that part of our law which defines ownership and its modifications. It was tersely put in one of the numerous decisions of our courts on this subject, that the testator must exert the power the law gives him in conformity with the titles prescribed by our law, and can not introduce new tenures. Succession of Franklin, 7 An. 420. This will is supposed tp be rescued from all difficulties, because none of the legatees are to take until the condition occurs, and because the substitution in its technical sense, [160]*160can not be applied to the condition that those who survive shall take the portion of those that die. Yet under this will no ownership, in the sense of full ownership, is vested at the death of the testator. So it is in the substitution, for title by the substitution is transmitted from heir to heir as prescribed by the testator until it finally reaches the last and complete owner. Here, the title is in abeyance; the property not susceptible of alienation, and put out of commerce, until the remote period when the youngest child becomes of age. The testator not only names his heirs, but he, not the law, prescribe those who are to succeed years after to the heirs living, when the testator passed to the grave. If there is any evil intended to be excluded by our Code in prohibiting substitutions that this will does not present, we fail to perceive it. We pass to another part of this will, in respect to which it can derive no aid from the decision of the Court of Cassation and authorities cited in that connection, dealing with wills not like this, linked with other features of prominent significance.
If this will is to be supported on the theory that it institutes heirs under a condition, then until the happening of the condition the heirs can have no possession, exercise no control, and are clothed with no vestige of ownership except the hope of succeeding in the future. Civil Code, Art. 985; Code Napoleon, Arts. 1040, 1168; Sirey Code Annotes; Notes on Art. 1040,5th Merlin, p. 369. But it is indispensable that until the conditional heir is called, there should be possession and ownership. It is the principle of our Code that the title in the plenitude of ownership passes with the last gasp of the testator to the living heir. The testator may divide ownership by giving, to one the usufruct, and to another the property. “For a single life” he may make that division. Succession of Franklin, 7 An. 416. But ownership, whether divided or not, must vest at the death. If divided, still it vests, and the elements are reunited at the end of a single life. In testamentary successions the universal legatee is seized of right, if there are no forced heirs. If the heir is instituted under a condition, the legal heir is seized, holds and makes the fruits his own. “ II résulte des régles que nous venons d’expliquer que le chose léguée sous condition reside jus qu’a l’événement de la condition dans l’héretier seul, aussi l’objet d’un leges conditional est compris dans les choses de l’héri-dité.” In legal successions the heir at the moment of death sue-[161]*161eeeds. Nor does the seizin of the executor in the least interfere with that of the heir. Civil Code, Arts. 940, 941, 942, 944, 1613; Code Napoleon, Arts. 719, 718; McDonald vs. Lobdell, 2 La. 299; 5th Merlin, pp. 714, 715. In the Macias case, to be discussed in another connection, and which is relied on to sustain the will, the decision emphasized that feature which the court conceived to be essential and present in the will. It was a legacy to a minor with the charge that the executor was to retain possession of the property until the majority of the minor. In the view of the court “ the title vested in the legatee” from the date of the testator’s death; had she died it would have passed to the heirs of the legatee. Succession of Macias, 31 An. 128. The Strauss case, 88 An. 55, relies on the Macias, its predecessor. Is it to be said that title in the sense of present ownership vests in the legatees, who, in this case, can have no possession or control for years, and may never attain the condition on which their title depends? It will not be pretended that any ownership is conferred on those to whom the testator intrusts the possession and administration of the property to endure for the period before the conditional heir can exert the slightest control or obtain possession. The’will gives no present title to the conditional heir, and at the same time excludes the heir from all possession.. It conveys no title in the sense of “ Le mort saisit le vif,” demanded as we think by the text of the Oode and our jurisprudence. The will fails under this test, and that would be its fate under the French Oode and jurisprudence. Succession of Franklin, 7 An. 416.
Our attention is next directed to that part of this will which directs that until the majority of the youngest child, the estate is to remain in the hands of his friends named also as his executors, and to be delivered by them to the heirs or the survivors, when the period arrives for' delivery. It is the Macias decision in 1879, and the Strauss decision in 1886, that it is claimed gave complete sanction to such a disposition. Our law prohibits all ftdei commissa. Our jurisprudence has excepted trusts susceptible of immediate execution. The trusts of executors in respect to their duties as such, have, of course, never been deemed within the prohibition. Mathurin vs. Livaudais, 5 Martin, N. S., 303; Caldwell vs. Hennen, 5 Robinson, 20. This, provision in the will is manifestly prompted by the desire of the testator to make [162]*162provision for the education and supp rt of the minors from the revenues of the property. He was not willing to trust the agencies provided by law for the accomplishment of these purposes. The laws provide tutors under guarantees deemed adequate to secure their faithful administration. The persons, the testator names, are to hold, manage the property, make investments and provide for the support and education of the minors until the period fixed by the will, and then the property is to be delivered to the surviving legatees. If none survive, a contingency not contemplated by the will, the property would have to be rendered to the legal heirs, whoever they might be ’ at that period. The trusts of the common law States for minors, married women and others incapable of administering their property, are prompted by precisely such motives as guided the testator and are forcibly suggested by the words he has employed. In the other States the beneficiary or cestui qui trust, for whom the trust is established, has no control over the property; the revenues are used for his support; and in the case of minors' also for their education; the investments of money and management of the property is confided exclusively to those holding the legal title called trustees. In this case the term trustee is- not used, nor is the legal or any title conveyed, but for all substantial purposes it is not easy to perceive in what respect the disposition under consideration differs from the common law trusts. Our courts have time and time again, held such trusts to be within the sweeping prohibitions of all fidei commissa. When it is considered that the duties of an executor are defined and restricted by our law, and are not those of a trustee for minors, it must seem difficult under our law to create such a trust in substance, and because conferred on an executor escape the prohibition of any form of fidei eonvmissum so plainly announced by our Oode, and rigidly enforced by a century of jurisprudence. Still less, can any such trust be imposed on an executor to endure in this case for the maximum period of thirteen years, or indeed for any term the testator chooses to fix, when under our law the seizin of the property can not extend one moment of time, beyond the demand of the heir for possession, and the tender of the amount required to pay the special legacies. Civil Code, Art. 1671; Percy vs. Provan’s Executor, 15 La. 69; Succession of Fisk, 3 An. 705. The functions delegated by the law to executors, and the obvious limit they carry, that is to affix seals, make the inventory of the property of the testator, [163]*163sell it, if requisite to pay debts or legacies, institute or defend suits, file his account, and pay the balance in his hands to the heir, or, in his absence, to the State treasury, utterly precludes any power in the testator to convert an executor into a trustee for minors, in the face of the prohibition of our law against fidei eommissa determined by our entire jurisprudence to embrace and forbid trusts by whatever mode, created, or proposed to be executed. The plain limitation on the seizin of the executor, it would seem, is complete denial of any right in the testator of extending that seizin for years, or indefinitely or for a fraction of time, least of all, for purposes not at all within the scope of the executor’s functions. It is claimed here in argument, that notwithstanding the marked limitation of the functions of the executor, expressed so forcibly by the very text of the Code, yet that the decisions cited in this connection, maintain that the testator can put his property in the hands of an executor to .remain for years until the minors attain majority, then to be rendered to them, in the meantime their wants to be looked after by the executor, and provided for from the revenues. All this, it is urged, can be done, in the full view of the prohibition in the Code of all trusts, whether for minors or others, and whether created by will, donation or contract. The law provides the instrumentalities for the care of minors and their property, but these agencies were not in contemplation in that part of our Code dealing with the capacities of executors. The Macias decision in 1879, dealing with a charge in the will, that the executor shall not deliver the property until the majority of the minor legatee, maintains that condition under the authority the court attributed to a decision in 1841, of the Supreme Court. Clague’s Case, 13 La. 6. The most obvious comment is that this decision invoked to support this kind of trust, sought to be carried out by an executor, is the terse condemnation of any such function. The disposition, observed that eminent jurist Justice Martin, as the organ of the court, by which the estate is to be put in the hands of the executor, there to remain until the majority of the minor legatees, then to be delivered to them, can not be distinguished from the charge to' preserve for and return the estate to them at their majority. The court thus assimilating the disposition so as to bring it within technical words of the substitution, deemed the illegality of the will too clear to admit of discussion, thus: “Such a disposition is indeed a fidei eommissum for[164]*164bidden by our law. OlagueOase, 13 La. 6. That ground was enough. But the court found another in the law then limiting the executor’s term to one year. Code of 1825, Arts. 1666, 1667. The Macias decision simply mistakes this additional reason, for that ground mainly in the contemplation of Judge Martin, and ample to support his decision, i. e., the forbidden trust Clague’s will sought to create. If? indeed, at that time the executor’s term had been longer it would have furnished a stronger reason, if any was needed, for the conclusion against a will tying up property for years in the hands of executors for ultimate delivery to legatees, if they chanced to attain majority. But it is plain the term of the executor was but the secondary non-essential reason, not the factor of the decision. When this court is asked to sustain this will on the Macias or that of the Strauss decision, the authority on which those decisions rest is brought under examination. That examination destroys the supposed authority and relieves the Martin court from any sanction, express or implied, of a disposition condemned by the decision itself in the strongest terms language can supply. This very Clague decision has been the guide of all later decisions down to the Macias case, and is referred to as authoritative in the leading cases in which the whole line of fidei oommissa and of trusts were examined. Heirs of Henderson vs. Rost, 5 An. 460; Succession of Franklin, 7 An. 420; McDonogh cases (State of Louisiana, etc., vs. The Executors of McDonogh), 8 An. 171, again referred to in the case of Partee vs. Hill, 12 An. 767, in the case of Succession of Foucher, 30 An. 1020, and in the ease of Succession of Stevens, 36 An. 755. Trusts occur most frequently in testamentary dispositions, and executors are most frequently selected for their execution. We are asked in effect to hold that a trust is withdrawn from the prohibition, if to be fulfilled by the very] class presumably, in contemplation when the prohibition was put in the Code. Until the Macias decision, no one dreamed that the least change in respect to fidei oommissa was produced by the scant legislation extending the term of executors. That extension was to afford time for the performance of their duties, not to obliterate the law of trustees and convert executors into trustees. By no known course of interpretation can any such purpose be attributed to the brief Act of 1837, in reference to the term of executors. Session Acts, p. 96. If, in Judge Martin’s opinion, it was un-awful to tie up property in the hands of executors, it remained and [165]*165is now prohibited, irrespective of the period assigned for the executor’s duties. In our view nothing was further from his contemplation; nothing more apart and distinct from that he did decide. The Strauss decision is the offspring of the Macias, and clings to it in great part for support. In the Strauss decision the court observed that the practical effect of the will was to give the minors legatees the usufruct until they reached majority, and the title when majority was attained. That argument is not advanced here. We can not grasp that process of reasoning by which it can be concluded that this will creates, or that the Strauss will brought into existence any usufruct in any sense known to our laws. If we could, this will would be brought within the shelter of Art. 1522 of the Oode, which, denoting the limit of testamentary power, permits him “to divide usufruct from ownership for a single life.” Succession of Franklin, 7 An. 416; Civil Code, Arts. 533 et seq. Usufruct is actual possession with the right to enjoy profits, fruits and revenues, with title in the usufructuary commensurate with all purposes of the usufruct. To maintain any usufruct in anybody, under the Strauss will or this, is to suppose usufruct without possession ; title where vestage there is none in the legatees for years to come, and it may be never; and would be to import by a construction resting, as we think, on no basis the other elements of usufruct defined by our law. In the case of Calvert, Tutrix, vs. Boullemet, 46 An. 1133, this Strauss decision came up incidentally to the question then raised, whether money bequeathed to a minor, not to be paid . by the executor until majority of the legatee, could on the resignation of the executor be demanded by the tutor. The court took occasion to observe the Strauss decision was not called in question, and disposed of the case on the ground that the executor could not, by resigning, release himself from the obligation, and thus furnish a ground for the tutor’s demand. In the Stephens Succession, 45 An. 962, the court announced its adherence to the decision in the Stevens Case, 36 An. 755; held that the legacies to major heirs could not be kept by the testator’s will in the hands of executors, and as to legacies to minors, the court guardedly observed, that question, when it came up, would be considered. The Strauss decision was referred to as deflecting from the line of preceding decisions. In our opinion, the Macias and its prototype, the Strauss decision, • stand alone in our jurisprudence. The last leans on the first [166]*166and the first, in our view, is refuted by the decision of Judge Martin, on which it claims to rest. We have considered with attention the line of French authorities arrayed in the brief on this question of the fidei commissa beginning with Laurent and Demolombe. But of what assistance are these authorities in dealing with the question of fidei commissa permitted under the Napoleon Code, but utterly prohibited by our Oode. Oode Napoleon, 896. As put by Judge Eustis in the case of Ducloslange vs. Ross, 3 An. 433, in a case supposed to prevent a substitution within the scope of those permitted by the French Oode, tolerant of such dispositions, when involving the mere fidei commis-sum: “The difference between that and our Oode on the subject of fidei commissa does not enable us to avail of French authorities in determining the question” then before the court. If, therefore, the authorities cited sustain the disposition of the character in question here, it would not advance the solution of the question now under consideration. But in the light of a fidei commissumov trust there is no discussion by the French authors, for the obvious, reason that the Napoleon Oode has no prohibition of such trusts. The authorities relied on by the defendant in this connection, examine the testamentary power to exclude the control of the tutor of the property of the minor. They affirm such control can be exerted by the testator with reference to the property he bequeaths to the minor, but that the control of the person, education and care of the minor child is protected from any interference. Demolombe indicates this discussion and its object in his conclusion that the clause of the testament, which takes from the father the administration of property bequeathed, does not prejudice the paternal power.” 6 Demolombe, 344. Laurent and others on the same line arrayed in defendant’s brief. It is on this line, too, that the Strauss decision sought assistance. In our view they afford no aid, and relate to a question not at issue here.
Our own jurisprudence, partially already considered, is, we think, inflexibly opposed to this will. The defendant cites the case of Succession of Cochrane, 29 An. 235, and the case of Succession of Charmbury, 34 An. 26. They involve bequests to minors,, and for investments of their legacies, not to be paid till the minors attain' majority. The cases differed materially from that before the court, and there was no discussion of the question here presented. The Olague case, directly applicable here, appropriately [167]*167stands prominent on this question. In the Henderson Case, 5 An. 460, the court, dealing with the trust sought to be created, and with the powers of executors, observed, if it would be illegal for the testator to leave his property to any person, or set of persons, with the charge to preserve and render it to another as is conceded, it was equally unlawful to tie it up in the hands of executors forever. It was not the length of time it was to be tied up, ‘but it was the trust attempted to be created that controlled the decision. In the Franklin case and MeDonogh cases, in both of which trusts were attempted to be established, the courts again enforced the article.of our Code as utterly excluding such tenures. There was no place for them, the court held, in our sytem, and no machinery for their execution. Succession of Franklin, 420; State of Louisiana vs. Executors of McDonogh, 8 An. 228. In the Partee Case, 12 An. 767, the testator bequeathed a sum of money to be held by trustees and paid over to the legatee at the period fixed by the will. The court citing the Olague case, held the trusteeship void; that the trusts of the common law embraced in the codal prohibition of fidei commissa could not be created in Louisiana and enforced in our courts. Again, in the Succession of Perin, 15 An. 154, where the trust was to be enforced by executors, the court held that trust estates of the common law, with their refined complications, were prohibited under the exclusion of all fidei eommissa. In the Succession of Foucher, 30 An. 1020, the legacy was to minors by the testatrix in France, and she directed the appointment of administrators in Louisiana to hold and administer the legacies until their majority. Again, with a reference to the Olague case, the court held the wishes of the testatrix could not be carried into effect, repeating that our law prohibited fidei eommissa.' The court observed it inclined to the opinion the clause in the will fell under that prohibition, and found another reason that as a condition it was illegal and to be reputed not written. In some of these cases the trusts were in reference to immovables, in others with respect to personal property, sums of money. Some were confided for their execution to trustees eo nomine, others to executors. In all, the courts treated them as fidei eommissa. In the Succession of Stevens, 36 An. 755, the testator bequeathed his estate to his executors in trust for the benefit of his sisters and the children of one of them. The testator’s object was to secure for the children an educa[168]*168tion, provide for the wants of all the legatees, and one thousand dollars to each; the children were to be paid when they became of age. This disposition, so far as respects the mode of administration and payment of the legacies, is not distinguishable in substance from that now presented. The agents selected were the executors; their functions were to be the same as those proposed for the executor in this will, and the only difference is the formula bequeathing to them in trust, conveying no title under our law. The decision in the Strauss case, can not, in our view, be reconciled with that in Stevens’ rendered but two years previous. The court in the Stevens case pronounced the striking feature of the will to be the trust estate the will proposed. This, said the court, flowed so clearly from the reading of the will that no argument was needed; an attempt to demonstrate it would be to support a self-evident proposition,"and the court contents itself with stating the line of decisions on the question. Yet the Strauss decision follows two years afterward, maintaining as lawful a disposition, the difference between which, and that utterly set aside in the Stevens case is, to our minds, unappreciable. This court attaches deserved sanctity to stare decisis, the defendant invokes. In our view that rule would notbe observed if we allowed to stand as the jurisprudence of Louisiana, decisions, isolated, and as we think, contrary to our Code and the unbroken line of decisions up to the moment of the Macias case, quickly followed by the Strauss decision, still further breaking in on that, hitherto deemed settled. It has not been without the maturest deliberation we have reached our conclusion. We think the appreciation of Judge Martin, announced more than fifty years ago was then the law, has been of constant recognition since, and is to-day the law of Louisiana. We feel bound to adhere to it.
The decree appropriate to this case has received careful consideration at the hands of the court. The provision keeping the estate from the legal heirs must yield to the law. They are entitled to possession. A decree to that effect we think, will meet the exigency of the case. In all probability there will be no occasion for any further adjudication and we reserve all other questions that may arise not covered by the decree.
It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed it is further ordered, adjudged and decreed that the minors, Fanny Tobin McOan, David [169]*169Chambers MeCan, Kate Elizabeth McCan and Charles Patterson Mc-Oan be recognized as the legal heirs of Hester Oalloway McOan, and as such, through their guardian, Mary Tobin Stemple, be and they are put in possession of the property of said deceased, Hester Oalloway McOan; that the provision of the will of said deceased giving the possession, control and administration of said property to Harry H. Hall and David 0. McOan be and is herebv decreed to be void and of no effect; that all questions not covered by this decree be preserved, and that appellees pay costs.
Nicblolls, 0. J., and Bebaux, J., concur in the decree.