The opinion of the court was delivered by
DeBlanc, J.
The last will of Pierre Jerome Michon, probated cn •the sixth of April, 1872, is in the following words :
[214]*214“ New York, Septembre 19,1871.
“Sain <Tesprit, mais souffrant, je donne iei mes derniéres volontés,. Mr. Gabriel Lóaumont qui a en mains a peu pres tout mon avoir,. donnera a. ma soeur, Estelle Miohon, veuve Louis Duoourneau, troismille dollars, et tout le reste a ma femme legitime, nee Louise Mathilde-Lacoste. Si ma femme mourait avant ma soeur, veuve Louis Duoourneau, la succession de ma femme serait redevable a ma scaur de troi©. mille dollars de plus.”
That last will was probated as a whole, without opposition, anc^ Michon’s wife — ^-as universal legatee of her husband, received — in money —about-fourteen thousand dollars. She died on the eighth of May,.. 1877, and Mrs. Louis Duoourneau, relying on the last clause of her brother’s will, claims from the succession of Mrs. Michon the sum of' three thousand dollars. Her demand is opposed on the ground “that the condition imposed to the bequest from the husband to the wife, in the will of the nineteenth of September, 1871, is a fidel commissum, and,, as such, null and of no effect under the 1520th article of R. C. C.” ■
On Michon’s part, there was no necessity to disguise or conceal— under a suspicious and prohibited form, his undeniable intention to add in favor of his sister, a conditional to an unconditional legacy. If, to carry out that lawful intention, he adopted a prohibited form, it could have been but through error, for he had the capacity to dispose as he-did, and his sister the capacity to receive. That is not disputed.
He could legally have given what is claimed: did he give according-to the form prescribed by our laws? Does his last will contain an immoral, unlawful or impossible condition — a substitution or a fidei commissum ? There is not — in the will — any reprobated condition, and if there had been a substitution in any of its clauses, that including the-substitution would have been null as to both the wife, as a legatee, the-sister as a third person, and the sister, as an heir, would have then» received the very amount which she now claims as a legatee.
R. C. C. 1520.
There is, however, no substitution in the last will of Michon. Hi© universal legatee is not charged to preserve or to return a .thing to a-third person, in the sense of the first paragraph of article 1520 of the Code: but — to the legacy tendered by Michon to his wife, to a liberality which she could accept or refuse, Michon has attached the condition! that — if she died before his sister — the latter would be entitled to clainv from her succession, the payment of a sum of three thousand dollars.
According to the French -authorities, there is no prohibited substition:
“ Dans la disposition par laquelle un testateur, a pres avoir instituí un lógataire universel, gréve ce legs du legs particulier d’une somm®[215]*215d’argent pour étre payee en oas de mort du légataire universel, sans parenté.”
Gilbert, Codes Anuobis, p. 385, No. 70, p. 386, No. 80.
It is contended that the obligation imposed by the will is that the wife, or her succession, shall return to the sister another thing than thafc donated, and that such a disposition constituted, under the Roman law, the fidei commission prohibited by ours. In this, there is an error of fact What did the wife receive ? Money. What is claimed of her succession ? Money. That which she received was hers and she had the right to dispose of it at her pleasure.
As well said in the case of Groves vs. Nutt: “ The legatee did not promise to preserve the money, to keep each identical dollar and return that to her father’s estate. On the contrary, she was to have the use o£ the money as long as she lived, and she contracted to return as much other coin only in the event she should die without issue. If that is a fidei commission or a prohibited substitution, then the thing which the depositary receives and promises to preserve and return to the depositor or the sum of money which my friend receives from me and promises to return in one week or ten years, ave fidei commissa and substitutions^
3 A. 122 and 123.
“ II suit de la,” according to Marcadé, “ qu’il ne peut pas y avoir substitution quand la libéralité a pour objot des choses fongibles, en sorts que le donataire ait la libre disposition de ces choses et soit seulement charge d’en rendre d’autres de merne nature, qualitó et quantite„ dans ce cas', en effet, il n’y a pas obligation de oonserver.”
Marcadé, vol. 3, p. 418.
Read with care, Michon’s will is found to contain three dist-incit dispositions, or one universal legacy with two charges thereon imposed. By one of said dispositions, his wife is chosen and named as his universal legatee; the two others, or the charges on the universal legacy are in? favor of his sister : if she survived him and his wife, she was to receive— at his death, the sum of three thousand dollars — at the death of his wife,, as much. The words used by the testator to describe and convey his. intention — “ La succession de ma 'femme sera redevdble (accountable) a ma soeur,” indicates that, as the first, the conditional legacy to his sister was a charge attached to his universal legacy and imposed upon his universal legatee. ■
“C’est encore une régle également applicable aux.testaments et aux contrats, de prendre dans le sens qui eonvient le plus a la nature de l’acte, les termes susceptibles de deux sens ; par exemple, si le testateur charge son légataire universel de payer une somme a un tiers, on doit prendre cet ordre pour un legs particulier plutot que pour une reconnaissance de dette.”
[216]*216Coin. Delisle, Commentaire du Titre des Donations et Testaments, p, 447, No. 11.
“ Comme la volonté du testateur fait la loi, le principe général est q’uil faut expliquer les difficultés du testament par la volonté du testateur autant que toute la teneur du testament la pourra faire connaitre ; il faut pour ainsi dire y suivre a la piste toutes les traces de cette volonté.”
1 Same book, p. 446, second paragraph of No. 4.
At the death of Miehon — less the unconditional legacy to his sister, the whole of his succession was given to and received by his wife, with full and unlimited power to dispose of it, of all that composed it. That legacy was accepted by the wife as made by the husband, with the ■charge thereon imposed, the condition thereto attached, and — as they are an inseparable part of the legacy — its acceptance carried with it that of said charge and of said condition.
When she applied for the probating of her husband’s will, could the wife have divided the legacy and divided her acceptance ? Could she have said: I take the legacy, but without the charge, without the condition ? She could not. Can her collateral relations, called to and claiming her succession as legatees, disregard, divide or qualify her absolute, •entire and unqualified acceptance? Can they change or reduce the effects of her acceptance, and of the decree rendered at her own demand and unreservedly homologating the will ? They can not.
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The opinion of the court was delivered by
DeBlanc, J.
The last will of Pierre Jerome Michon, probated cn •the sixth of April, 1872, is in the following words :
[214]*214“ New York, Septembre 19,1871.
“Sain <Tesprit, mais souffrant, je donne iei mes derniéres volontés,. Mr. Gabriel Lóaumont qui a en mains a peu pres tout mon avoir,. donnera a. ma soeur, Estelle Miohon, veuve Louis Duoourneau, troismille dollars, et tout le reste a ma femme legitime, nee Louise Mathilde-Lacoste. Si ma femme mourait avant ma soeur, veuve Louis Duoourneau, la succession de ma femme serait redevable a ma scaur de troi©. mille dollars de plus.”
That last will was probated as a whole, without opposition, anc^ Michon’s wife — ^-as universal legatee of her husband, received — in money —about-fourteen thousand dollars. She died on the eighth of May,.. 1877, and Mrs. Louis Duoourneau, relying on the last clause of her brother’s will, claims from the succession of Mrs. Michon the sum of' three thousand dollars. Her demand is opposed on the ground “that the condition imposed to the bequest from the husband to the wife, in the will of the nineteenth of September, 1871, is a fidel commissum, and,, as such, null and of no effect under the 1520th article of R. C. C.” ■
On Michon’s part, there was no necessity to disguise or conceal— under a suspicious and prohibited form, his undeniable intention to add in favor of his sister, a conditional to an unconditional legacy. If, to carry out that lawful intention, he adopted a prohibited form, it could have been but through error, for he had the capacity to dispose as he-did, and his sister the capacity to receive. That is not disputed.
He could legally have given what is claimed: did he give according-to the form prescribed by our laws? Does his last will contain an immoral, unlawful or impossible condition — a substitution or a fidei commissum ? There is not — in the will — any reprobated condition, and if there had been a substitution in any of its clauses, that including the-substitution would have been null as to both the wife, as a legatee, the-sister as a third person, and the sister, as an heir, would have then» received the very amount which she now claims as a legatee.
R. C. C. 1520.
There is, however, no substitution in the last will of Michon. Hi© universal legatee is not charged to preserve or to return a .thing to a-third person, in the sense of the first paragraph of article 1520 of the Code: but — to the legacy tendered by Michon to his wife, to a liberality which she could accept or refuse, Michon has attached the condition! that — if she died before his sister — the latter would be entitled to clainv from her succession, the payment of a sum of three thousand dollars.
According to the French -authorities, there is no prohibited substition:
“ Dans la disposition par laquelle un testateur, a pres avoir instituí un lógataire universel, gréve ce legs du legs particulier d’une somm®[215]*215d’argent pour étre payee en oas de mort du légataire universel, sans parenté.”
Gilbert, Codes Anuobis, p. 385, No. 70, p. 386, No. 80.
It is contended that the obligation imposed by the will is that the wife, or her succession, shall return to the sister another thing than thafc donated, and that such a disposition constituted, under the Roman law, the fidei commission prohibited by ours. In this, there is an error of fact What did the wife receive ? Money. What is claimed of her succession ? Money. That which she received was hers and she had the right to dispose of it at her pleasure.
As well said in the case of Groves vs. Nutt: “ The legatee did not promise to preserve the money, to keep each identical dollar and return that to her father’s estate. On the contrary, she was to have the use o£ the money as long as she lived, and she contracted to return as much other coin only in the event she should die without issue. If that is a fidei commission or a prohibited substitution, then the thing which the depositary receives and promises to preserve and return to the depositor or the sum of money which my friend receives from me and promises to return in one week or ten years, ave fidei commissa and substitutions^
3 A. 122 and 123.
“ II suit de la,” according to Marcadé, “ qu’il ne peut pas y avoir substitution quand la libéralité a pour objot des choses fongibles, en sorts que le donataire ait la libre disposition de ces choses et soit seulement charge d’en rendre d’autres de merne nature, qualitó et quantite„ dans ce cas', en effet, il n’y a pas obligation de oonserver.”
Marcadé, vol. 3, p. 418.
Read with care, Michon’s will is found to contain three dist-incit dispositions, or one universal legacy with two charges thereon imposed. By one of said dispositions, his wife is chosen and named as his universal legatee; the two others, or the charges on the universal legacy are in? favor of his sister : if she survived him and his wife, she was to receive— at his death, the sum of three thousand dollars — at the death of his wife,, as much. The words used by the testator to describe and convey his. intention — “ La succession de ma 'femme sera redevdble (accountable) a ma soeur,” indicates that, as the first, the conditional legacy to his sister was a charge attached to his universal legacy and imposed upon his universal legatee. ■
“C’est encore une régle également applicable aux.testaments et aux contrats, de prendre dans le sens qui eonvient le plus a la nature de l’acte, les termes susceptibles de deux sens ; par exemple, si le testateur charge son légataire universel de payer une somme a un tiers, on doit prendre cet ordre pour un legs particulier plutot que pour une reconnaissance de dette.”
[216]*216Coin. Delisle, Commentaire du Titre des Donations et Testaments, p, 447, No. 11.
“ Comme la volonté du testateur fait la loi, le principe général est q’uil faut expliquer les difficultés du testament par la volonté du testateur autant que toute la teneur du testament la pourra faire connaitre ; il faut pour ainsi dire y suivre a la piste toutes les traces de cette volonté.”
1 Same book, p. 446, second paragraph of No. 4.
At the death of Miehon — less the unconditional legacy to his sister, the whole of his succession was given to and received by his wife, with full and unlimited power to dispose of it, of all that composed it. That legacy was accepted by the wife as made by the husband, with the ■charge thereon imposed, the condition thereto attached, and — as they are an inseparable part of the legacy — its acceptance carried with it that of said charge and of said condition.
When she applied for the probating of her husband’s will, could the wife have divided the legacy and divided her acceptance ? Could she have said: I take the legacy, but without the charge, without the condition ? She could not. Can her collateral relations, called to and claiming her succession as legatees, disregard, divide or qualify her absolute, •entire and unqualified acceptance? Can they change or reduce the effects of her acceptance, and of the decree rendered at her own demand and unreservedly homologating the will ? They can not.
“ There can be no doubt, as hold by this court, that the acceptance of a legacy burdened with a modus, or lawful charge under a will, is itself a contract on the part of the person accepting, obliging him, impliedly at least, to comply with the condition imposed by the will and to acquit the charge imposed upon the legacy which he receives, and that — under the Constitution of the United States, neither the State where this obligation is contracted, nor any other State can — by subsequent legislation, absolve the obligor from such obligation.”
3 A. p. 122; R. C. C. 1890.
Under the articles of our Code, the right acquired under a conditional bequest creates more than a mere implied obligation: it creates — on the happening of the condition — an express, civil, natural and corresponding ■obligation on the heirs and, on the universal legatee as on the heirs, to ■deliver the conditional, the particular legacy, or to acquit the charge imposed by the testator on his liberalities. There is but one way of •avoiding that plain and positive obligation : it is by rejecting the disposition by which it is imposed.
Rev. C. C. 2030, 1614, 1633, 1758, No. 4, 1703.
What, as to his estate, were the testator’s intentions ? To transmit it to only two persons — his wife and his sister. In what proportion ? [217]*217To his sister, he gave $3000, which were to be paid to her at his death ; to his wife, he gave the balance of his- estate; but the legacy to the latter was charged with the conditional obligation that — at her death — the testator’s sister, if then alive, would be entitled to claim from the succession of his wife — as a debt — an additional sum of $3000. This charge was not to accrue at the death of the -wife, but that charge accrued at the opening of Michon’s succession and was merely suspended until the accomplishment of the condition attached to it — the predecease of the wife.
R. C. C. Art. 1698.
The last will of those who depart this life is the last expression of their love, friendship or gratitude, and — where it violates no law — that will, by far the most sacred of all Sacred things, should be as respected as the grave of the dead.
It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be and it is hereby avoided and reversed, the opposition .of Estelle Michon, widow of Louis Ducourneau, maintained, and the executor of the last will of Louise Mathilde Lacoste, deceased widow of the late Pierre Jerome Michon, ordered to class said opponent as a creditor of the succession of said widow Michon for the sum of three thousand dollars, with legal interest thereon from the twenty-fifth of June (1877) eighteen hundred and seventy-seven; the costs in both courts to be paid by the succession of widow Pierre Jerome Michon.