The opinion of the Court was delivered by
Bermudez, C. J.
The object of this suit is to have it judicially declared :
1. Tliat the widow of the deceased is not entitled to a usufruct over bis share in the community property. .
2. That the donations of securities and cash made by the deceased to his wife, in New York and New Orleans, are nullities, and if not such, are excessive, and should be seduced to the legal quantum.
3.' That the deceased left individual property, which he owned previous to his marriage, and which must be accounted for.
The defense is, that the deceased, by his will, confirmed the usufruct given by law to bis widow and lias bequeathed to her the disposable portion of his estate ; that the donations attacked are valid as having been made in New York during the existence of the domicile of the couple in that State and agreeably to the local law.
There was judgment recognizing the succession as a creditor of the community for $7000, the widow as a creditor for $2000 ; that Moore never acquired a domicile in New York ; that the donations are simulated j that the effects douated should be inventoried; that the widow is entitled to the disposable portion and tlie plaintiffs to the share accruing to them as forced lieirs, in that portion of his estate of which-the law prohibits him from disposing.
[534]*534From this judgment the widow prosecutés this appeal. The appellees have prayed for no amendment.
Three questions are therefore presented :
1. What are, in the eye of the law, the testamentary dispositions of the deceased and what is practically their extent.
2. Whether the donations made in New York are or not valid.
3. Whether the succession is a creditor or not of the community.
John T. Moore died in this city on March 29th, 1886.
He left a surviving wife, seven children and two sets of grandchildren representing their deceased mothers.
He executed a will on October 20th, 1885, which was followed by a codicil dated February, 1886.
The will contains the following clause:
“ All the property I am possessed of, consists of community property. I give, devise and bequeath unto my wife, Agnes Jane Byrne Moore, the usufruct during her natural life, of all the property I may die possessed of, community or no community. I hereby appoint my said wife executrix of this my last will and testament, with seizin of my entire estate, and without any bond or security whatever and without an inventory of my estate.”
The codicil contains two special legacies, amounting to ten thousand dollars, and the following clause :
“ I give and bequeath unto my said wife, Mrs. Agnes Jane Byrne Moore, the disposable portion of all the property, real and personal, movable and immovable, in whatsoever the same consist and wherever situated, I may own or possess at the time of my death, and to that end I constitute my said wife my universal heir and legatee.
“I do hereby declare that this is a codicil to the last will and testament, already referred to as having been made by me by act before W. J. Castell, late a notary public in this city, on 20th October, 1885, which said last will and testament shall be and remain in full force and effect.”
I.
These clauses must be taken and construed together in order to ascertain what the intention of the testator was.
A careful consideration of them impresses the mind that his main object was to give to his wife all that the law allowed him to dispose in her favor.
The first expresses the wish that she should have the usufruct [535]*535during life of all his property, and he next bequeaths to her the disposable portion of that property, constituting her to that end his universal legatee.
The plaintiffs contend that, under the terms of the act of 1844, now Article 916 R. C. C., and under Article 1710 R. C. C., the widow cannot claim both the disposable portion and the usufruct.
Article 916 reads:
“ In all cases, when the predeceased husband or wife shall have left issue of the marriage with the survivor, and shall not have disposed, by last will or testament, of his or her share in the community property, the survivor shall hold in usufruct during his or her natural life so much of the share of the deceased in such community property as may be inherited by such issue. This usufruct shall cease, whenever the survivor shall enter into a second marriage.”
This is a reproduction of the second section of the act of 1844, p. 99; R. S. 1711.
Article 1710 justifies an action to revoke charges or conditions illegally imposed by a testator on the legitimate portion of forced heirs, and is a reproduction of Article 1703 of the Code of 1825.
The purpose of the law was obviously to enlarge the rights of the surviving spouse by conferring on him or her, privileges not previously possessed.
Under anterior laws, such spouse was entitled to take only his share of the community property, and had no claim whatever over the portion accruing to the issue of his marriage with the deceased, as Ms share therin.
Since the passage of the law, the surviving spouse has, virtute legis, a right of usufruct over the share of the deceased in the community property inherited by the issue of the marriage whenever the deceased has not, by a testamentary disposition, provided to the contrary.
The usufruct, under the provision of the law, continues during the widowhood of the survivor, when there exists issue of the marriage arduo will to the reverse.
The law did not propose, by allowing the usufruct, to abridge any of the rights of the first dying spouse. On the contrary, it left it within his power, his discretion, even his caprice, to place Ms share in the community property in the condition in which it would have been in, had not the law of 1844 been passed, as, it provides that the usufruct will accrue to the survivor, if the deceased has not disposed, by will, of his share, inherited by the issue of his marriage.
The spirit and the letter of that portion of the law are simply, that [536]*536the surviving spouse shall have, during widowhood, the usufruct of the share of the deceased in the property of the community, there oeing issue of the marriage, when the deceased shall not, by will, have disposed of. his entire share in the property, so as to defeat the legal usufruct over the whole; clearly implying, that, when the deceased shall have, in that mode, disposed of a part of his share, the usufruct created by law, should extend only over the portion inherited by the issue of the marriage, due regard had to their legitime.
At Moore’s death, his widow was clearly entitled’to her half of the community property, and, in the absence of any will to the contrary, she would also have been entitled to a usufruct during her widowhood, over the remaining half, that is the share of her husband therein inherited by the issue of the marriage. In honorem preteriti matrimonii. A fortiori, would she be entitled to such usufruct, when, there being a will, it provides that she shall have it.
Surely, as the law did not design to curtail any of his rights over his property, which lie possessed previous to the law, Moore could have bequeathed the nalced ownership of the disposable portion in favor of any stranger, for, under the previous laws, he could have disposed of that portion of his estate even unqualifiedly, such ownership to become eventually full ownership, at the termination of the usufruct.
His widow, in the case just stated, would have had a usufruct over the entire share, as well that portion bequeathed to the stranger, as that inherited by his issue, the legatee taking nothing beyond the naked ownership of one-third, and the issue that of two-thirds.
There would even be no objection to his bequeathing the disposable portion, without any restriction, including both ownership and usufruct, to a stranger, leaving the other two-thirds to accrue in naked ownership to his forced heirs as the maximum of their légitime, but subject to the usufruct of his widow.
"What he could do in favor of a stranger, he could validly do in favor of his wife.
Who can do more, can do less.
■ It is apparent, that the only condition imposed by law for the existence of the usufruct in favor of the survivor, is that the deceased shall not have disposed by will, adversely, of his share in the community.
As a consequence, it follows that where the adverse disposition affects only part of the share, the usufruct shall not extend over the disposed portion, but shall exist over the undisposed portion, inherited by the issue of the marriage.
[537]*537Disposing of the share means disposing of the entire share.
To dispose of pan-t of the share is not, to dispose of ihe entire share, is not to dispose of the share.
It is true that Moore could not encumber the portion for which his children are forced heirs, that is their legitime; but the fact is that he has r ot done so, for the encumbrance is placed upon it by law, independent of his participation..
All Moore did was to confirm it. It would have existed without the confirmation, which is practically a superfluity.
The words used for the confirmation and which apparently are expressive of a bequest, are of little or no significance, for the plain reason, that, without such confirmation, the widow would have had the usufruct by the force of the law, and conld have been deprived of it only by an adverse testamentary disposition of her husband.
The contention of the plaintiffs is that: “ Where there is a will, which diverts from the issue the disposable part of the community property — which the issue would otherwise inherit — and so the issue does not inherit the whole, the usufruct does not attach.”
This proposition is untenable and rests upon the inadmissible theory that disposing of a part, is disposing of the lohole of the thing.
In support of this view, counsel relies on the decisions of a previous Court in two cases, that of the Succession of Eorstall, 28 Ann. 198, and of the Succession of Denegre, unreported. O. B. 45, fol 529; also Grayson vs Sanford, 12 Ann. 646.
The terms of the wills of Eorstall and of Moore are not germane. The facts are different. The ruling, therefore, cannot be invoked as a precedent.
The opinion shows that Forstall had disposed of his entire share in the community in favor of his wife, while in the instant case, Moore has bequeathed to his wife only the disposable portion, confirming her legal usufruct over the remaining portion of his share in the community property, without affecting or attempting to encumber, in the least, the ownership of the two-thirds inherited by the issue.
The court used the following language :
“ The condition upon which the survivor shall have the usufruct is that the predeceased husband or wife shall not have disposed of his or her share; that is, the share that he or she was permitted by law to dispose of.”
A thoughtful reading of the text of the law and consideration of its spirit and purpose, shows that the disposition which is referred to as destructive of the usufruct, is not one in favor of, but one adverse to, [538]*538the survivor, one which actually takes away from him, in unmistakable terms, the usufruct, in whole or in part.
Hence, where the deceased spouse, leaving issue of the marriage, and owning separate and common property, bequeaths to the survivor the disposable portion and the usufruct of his undisposed share in the community property, the disposition is valid and binding on the heirs inheriting the undisposed portion, and the same is true where he institutes the survivor his universal legatee, for, the bequest is not null, but reducible to the disposable portion and the usufruct over the undisposed share. R. C. C. 1502.
In the succession of Denegre, subsequently decided, it was held by a divided court that, as the testator had bequeathed'$10,000 to one of his daughters and directed that the rest of his property be administered for the benefit of his widow and children, he had disposed of his share in the community and that his widow was not entitled to the usufruct.
The error consists, not so much in the construction of the law, as in the interpretation placed on the will, for it is clear that, if after making the legacy, the testator had provided that his estate should, at his death, pass to his heirs, the decision would have been correct.
Such was the condition of things presented in the Succession of Schiller, 33 Ann. 1, in which the testator had willed that his estate be distributed among his legal heirs, according to the laws in force in the State. The word distribution implying a division, and, therefore, a partition, the present Court held that the widow is not entitled to the nsufruct which she claimed.
The facts in the Grayson case, 12 Ann. 646, are not analogous to those here. The widow did not claim both the disposable portion and the usufruct, and the Court did not say that she could not have both. The matter uuder consideration was the interpretation of the will. The same may be said of the ruling in the Grayson case. 12 Ann. 646.
It is a fallacy to suppose that where a person dies owning separate property besides his share in the community, the disposable portion consists only of part of that share. His succession is necessarily made up of his separate estate and of his share in the community — the disposable portion, varying according to the number of the children left — from two-thirds to half and to one-third of the entire estate.
Hence, in the present case, as the property left by Moore consists of not only his separate estate, but also his half of the assets of the community, the disposable portion is of one-third of both, as he left more than three children.
[539]*539From all the foregoing, it is perfectly clear that, as Moore has not in any manner disposed, by testamentary disposition, adversely to the usufruct created by law in favor of his surviving wife, but has, on the contrary, confirmed that usufruct, it follows that his will must be maintained and his widow recognized as entitled to the disposable portion and to the usufruct over the rest of his property, to the extent to be hereafter set forth.
II.
The next question to be considered relates to the donation of securities and cash made by Moore to his wife, in New York and New Orleans.
We deem it unnecessary to review the testimony which was offered to show that Moore has never lost his domicile in New Orleans and has never acquired any in New Yoik.
We are satisfied that the circumstances under which he left New Orleans, and which, it is needless to state, were such as to inspire him with the desire of leaving the city to seek tranquillity elsewhere; that he left with the intention of establishing another domicile in some other place, but we are not convinced that he did so in New York, as is claimed. The intention and the fact must co-exist. There is nothing substantial to show that that intention was ever realized beyond a doubt.
It does not, however, follow that the donations made by Moore to his wife, while they were in New York, and subsequently here, are nullities. They must be viewed as made in New Orleans. They, no doubt, were made and accepted bona fide. The donation made in New York consists in United States bonds to the amount of one hundred thousand dollars, and that in New Orleans, of money, seven thousand nine hundred and thirty-five dollars ánd fifty-seven cents, aggregating $107,935.55.
The defendant denies that the donations are excessive, and even if such, that they can be reduced.
Surely, the widow, not being an heir, cannot be required to collate, if the donations exceed the disposable portion, but it is beyond all; dispute that the plaintiffs, who are forced heirs, have, by the law, the right to bring an action in reduction. It is manifest that, unless they enjoyed that privilege, the exercise of which is optional with them, the articles of the Code, which prohibit excessive donation, when there exist forced heirs, would be dead letters; nay, read out of the book altogether. R. O. C. 1493, et seq.
Article 1504 admits the right, saying that it can be exercised by [540]*540forced heirs only, but nob by donees, legatees or creditors. R. C, C. 1502, 1703; also, H. D. Vol. Donations II. (d) 1, 5, 11, 15, 16, 18; C. N. 921, 922; Chabot, Vol. Adoption, Locré, p. 386, No. 28.
The authors are unanimous on the question, and recognize the extension of the right notonly against concurrent heirs,but even against strangers. The wife may be benefitted as much as a stranger, but not more. She forms no exception. R. C. C. 1746; 1 Ann. 237; 7 Ann. 175; C. N. 920 et seq; V. Demolombe, Vol. 19, No. 189; Pothier Don. Sec. 3, Art. 5; Louré 11, p. 451; Duranton 8, N. 316; Merlin, Vol. Inst. D’her, Sec. 1, No. 9; Aubry & Rau., Vol. 7, p. 184, § 683; Laurent, Vol. 12, No. 152. See, also, Baudry Lacantinerie, Vol. 2, pp. 165-6.
It is because of that right of action, that the law provides that in determining the question of reduction, the property disposed of inter vivos, must be fictitiously added to that belonging to the donor at the time of his death and appraised at its value then. R. C. C. 1505, 1235.
It also emphatically provides, in calculating the disposable portion, that all the property donated or bequeathed by the deceased must be included, whether given to the children, to relations, or to strangers. R. C. C. 1234.
It, therefore, follows that the plaintiffs in this suit have a standing to demand a reduction of the donations, if the effects donated were, at the death of the donor, worth more than the disposable portion.
The amount of the property inventoried nears $245,000 ; that of the bonds and cash foots some $108,000.
It is claimed that, to the .inventory should be added the separate property of the deceased, valued in the judgment at $7000.
This would swell the inventory beyond $350,000, donations included.
There is no proof in the record, that we have been able to discover, establishing the value of the bonds at the death of Moore, and there is no specific argument or prayer on the subject that can justify a decision presently of the question whether the donations exceed or not the disposable portion, so that this matter must be left open for future consideration and determination in other proceedings.
The donations, if excessive, would not, on that account, be null, but simply reducible. R. C. C. 1502.
In relation to the amount which Mrs. Moore claims to have loaned her husband, i. e., $20,000, and which was the proceeds of coupons on the bonds, and was subsequently returned by him to her, it is enough to say that, if the bonds became her property by the donation or gift [541]*541made of them to her, she necessarily was likewise the owner of the fruits yielded by them, and is not accountable therefor.
It has been contended that the donations are null, because not made in the proper form; that is, by a notarial act, under Article, R. C. C., 1538.
The bonds payable to bearer were corporeal moveable effects, which could pass, without indorsement or assignment, by simple delivery, and may be considered as proper objects of a manual gift, which is not subject to any formality. R. C. C. 1539; V. Laurent, Vol. 12, pp. 351-2, Nos. 280 and 281.
III.
The third subject to be considered is the claim of the succession against the community, for the separate property of Moore, owned by him anterior to his marriage, and which was used for the benefit and advantage of the community.
The claim is stated to amount to $20,000.
The district judge, however, did not recognize it to be so large. He admitted the claim for $7000 only.
The plaintiffs have not prayed, by answer to the appeal, any increase of that allowance.
The appellant has not shown in what particular it is erroneous, and the evidence does not satisfy us that the finding of the lower court, in that respect, ought to be disturbed.
The judgment appealed from has recognized Mrs. Moore as a creditor of the community for $2000.
The appellees have not complained of this allowance, and cannot expect any amendment on the subject.
The condition of the transcript and the absence of any pointed demand for any specific relief, as far as.figures go in all cases, particularly as concerns the reduction of the donations eventually, do not permit us, as already intimated, to arrive at any particular result in that regard.
We will conclude in stating the manner and mode in which, keeping in view the matters involved in the present controversy, the Succession of John T. Moore ought to be and must be settled.
The mass of the succession must be composed of the separate property of the deceased, of his share in the common property, and of the value of the'effects donated at the time of his'death.
[542]*542After payment of the debts and charges against his estate, including the legacies and the $2000 found in favor of Mrs. Moore, the net revenue must be divided into three equal parts.
The first third should be composed of the separate property of Mr. Moore, and in addition of such portion of his share in the community as may be necessary to complete that third.
Out of that third must be deducted the two legacies of $10,000, and the residue of the third will accrue to Mrs. Moore in full satisfaction of the legacy of the disposable portion made to her by her husband, including the value of the effects and money donated to her by him in New York and in New Orleans, should there remain a deceit between the amount of the legacies added to the donations and the third of the entire estate, the deficit will have to be satisfied out of the share of the deceased in the community; but should, on the contrary, the amount of the legacies added to that of the donations, encroach beyond the third, on the remaining two-thirds, this surplus shall be forfeited by the widow, and she would take only the difference between the legacies and the amount of the third R. C. C. 1510.
Next, Mrs. Moore will be entitled to the usufruct of the remaining share of the deceased in the community during her widowhood, under the law, as confirmed by the will.
Finally, the portion of the estate of the deceased as shall be subjected to rke usufruct of Mrs. Moore shall be deemed as the légití/me, accruing in naked ownership to the nine children, as forced heirs of the deceased, share alike, the plaintiffs herein, viz: the minors, Flanagan and Mrs. Moore, Jr., jointly, to be entitled to two-ninths, and the minor, Hickey, to one-twenty-seventli of that portion.
Por these reasons:
It is ordered and decreed that so much of the judgment appealed from as recognizes Mrs. Moore as a, legatee for the disposable portion, and as a creditor for two thousand dollars and the succession as a creditor for seven thousand dollars, be affirmed, and that in all other respects it be reversed;
It is further ordered and decreed that the donations made in New York and New Orleans be recognized as valid, the same to be allowed to Mrs. Moore in part satisfaction of her legacy of the disposable portion, and in case the same exceed that portion, that the surplus be declared forfeited by Mrs. Moore, to be made good by her to the succession, it being understood that the legacies of ten thousand dollars are to be first deducted from the disposable portion ;
It is further ordered and decreed that Mrs. Moore be declared [543]*543entitled, during her widowhood, to the usufruct of the share her husband inherited by the issue of their marriage, as shall remain after satisfaction of the disposable portion ; and,
It is further ordered and decreed that the plaintiffs and the other children and grandchildren be recognized together as entitled, in their capacity of forced heirs to the deceased, tó the naked ownership of the two-thirds or portion of his share in the community as is subjected to the usufruct of Mrs. Moore, or the minors, Sullivan and Mrs. Moore, Jr., to one-ninth each of said same share, and the minor, Hickey, to one-twenty-seventh thereof.
It is further ordered and decreed that the appellees pay costs of appeal.
Mr. Justice Watkins dissents on the question of usufruct and concurs in other respects.