(concurring).
I am in accord with our holding that the exception of no cause of action was properly sustained by the lower court. I am in particular agreement with our refusal to consider the plea of nullity of the will. As correctly pointed out, such a plea cannot be considered when it has not been made an issue in the pleadings and has been raised for the first time in brief before this court. Appellant, having treated the will as validly placing only the usufruct in trust, cannot now be heard to complain by way of brief alone that such will is null as containing a prohibited substitution in contravention of the holdings in Succession of Guillory, 232 La. 213, 94 So. 2d 38 (1957) ; In re Succession of Meadors (La.App. 2 Cir., 1961) 135 So.2d 679.
Therefore, any statements in our opinion indicating that only the usufruct was left in trust with the naked ownership passing to other heirs is dicta. Not only is it dicta, but such a conclusion might well be construed as in direct conflict with the Guillory and Meadors cases, supra. As such gratuitous pronouncements were unnecessary for our ultimate decree, I think they should have been omitted so as not to prejudice any right appellant might have to test the validity of the will in subsequent appropriate proceedings.