On Application for Rehearing.
By the WHOLE COURT.
PER CURIAM.Appellant complains that his alternative demand was not passed upon. This is correct; it was not passed upon because not mentioned in brief or argument. But even as to this, we think the petition shows no cause of action.
1. C. C. art. 1753, was repealed by Act 238 of 1918; but there is a saving clause to that act (wholly unnecessary), by which it was not to affect property which had reverted to the children prior to its passage. As the defendant (widow) had remarried before the passage' of that act, the personal property given her by will had already reverted to the children of the first marriage.
However, the right to the usufruct thereof remained, under the very terms of the Code (apart from the will). She therefore had the right to retain possession thereof during her life; and any judgment herein rendered would be merely declarative of a fact. But courts do not sit to decide abstract questions or render judgments which cannot be executed.
2. The will being valid, the usufruct of the whole estate, given by will, continues despite the second marriage; only the legal usufruct ceases upon second marriage. Smith v. Nelson, 121 La. 170, 46 South. 200.
A rehearing is therefore refused.