The judgment of the court was pronounced by
Eustis, C. J.The plaintiff, who is the natural tutor and guardian of his minor children, residing in the territory of Wisconsin, seeks to recover from the *496executors of the late Abijah Fük, the sum of $100,000, being the amount of a legacy alleged to be left to them under the will of their deceased uncle, Slebbins Fisk, who died in June, 1837. One of the executors, Alvarez Fisk, resists this demand, and claims the amount as belonging to the succession of Abijah Fisk, of whom he is the residuary legatee.
The rights of the parties before us depend upon the construction of this clause in the will of the late Siebbins Fisk :
“ To my brother, Abijah Fisk, I give, devise, and bequeath the sum of $100,000, for his sole use and benefit, without any security whatever, during his natural life. At his death it shall be divided and given equally to the children of Sereno Fisk, my younger brother.”
Under this clause Abijah Fisk received the $100,000, which he retained till his death, which took place, in New Orleans, in December, 1845.
It is contended that this legacy contains a. fideicommissum, and is within the prohibitive article of our Civil Code on that subject.
In the case of Ducloslange v. Foss, recently decided, arate p. 432, we held that, under article 1507 of the Code, fideicommissa, as well as substitutions, were prohibited. To this prohibition, the Code, in the ai tides immediately following, 1508 and 1509, establishes two exceptions; the first, in favor of the vulgar substitution of the civil law, and the second, in favor of dispositions testamentary, or inter vivos, by which the usufruct is given to one, and the naked property to another. The difficulty of distinguishing with precision between the latter and fideicommissa, leads to the conclusion that, the sense of these articles, taken with other articles of the Code, is that, these exeepted cases, although they may be substitutions or fideicommissa, are exeepted from the general prohibition. That the intention of the testator was to create an usufruct in favor of the legatee, Abijah Fisk, the language made use of leaves no room to doubt; and it is equally clear that, if no prohibition existed in relation to substitutions and fideicommissa, the children of Sereno Fisk could recover the amount of it from his succession at his death, the usufruct having terminated with that event.
But it is contended that this legacy is within the prohibition, and not within the exception, because the property in the money, or subject of the legacy, was absolutely vested in Abijah Fisk, and not merely the usufruct, and that he thereby became the owner, and not merely the usufructuary. This is true in one sense. If the usufruct is of things which cannot be used without being expended or consumed, the usufructuary has a right to dispose of them at his pleasure, under the obligation of replacing them or their value, at the expiration of the usufruct. C. C. 542. But, as between the parties in interest, the few recognizes him as the owner, to whom the property is to fallón the termination of the usufruct, and the usufructuary, simply as such, though the ownership is absolutely in him, of things which are expended or consumed in the use. See articles 542, 543 el seq. and 556. The interest, or property, in things subject to usufruct, is a fiction of few, created by the Code, with reference to which article 1509 must be construed as to its operation and intendment. Wherever an usufruct is legally established, whether perfect or imperfect according to the provisions of the Code, the prohibition is not violated.
We have held in the cases of the Bank of Louisiana v Briscoe, ante p. 157, and of Macarty and others v. Mandeville, ante p. 239, that where the facts of a case present a double aspect, one of which brought the case within, and the other left it without, the scope of a prohibitory few, the contract would be sus*497tained. "We, therefore, concur with the district judge in his conclusion, as to the validity of the testamentary disposition in favor of the children of Sereno' Fisk.
At the time of the death of the testator, Stebbins Fisk, but two of the childrens of Sereno Fisk, were in esse, and it is urged by the learned counsel that, the? three of the present plaintiffs in interest, born since, are necessarily excluded' from all participation in the legacy. The terms of the Will are: “ At his death, it shall be divided and given equally to the children of Sereno Fisk, my youngest brother.” At the decease of Stebbins Fisk, in June, 183?, but two of the plaintiffs were bofrn, or conceived ; Mary Elizabeth, born in 1834, and Newton,- born in' 1836. The nextinage, 'Caroline, was not bora bntii September, 1838. Under the' terms of the Will, and in accordance with the provisions of the Civil Code, arts. 1457, 1458, 1459, 1469, we think that the children living at the decease of thé‘ testator can alone take under his will.
The learned judge before whom this cause was tried, at the instance of thó' counsel for the tutor, abstained from determining this question, as to Which of . the children this legacy belonged. The same request has been made in this court, but we do' not feel ourselves at liberty to decide the ease adversely to- the residuary legatee and the succession of Abijah Fiskf represented by the executors,- without determining to whofri the money in dispute, of right, belongs.- The’ judgment of the District Court will have to be changed in this respect,-
The judgment of the District Court is, therefore, in part reversed; and it is ordered that, judgment be rendered in favor of "Sereno Fisk, tutor and' guardian of his minor children, Mary Elizabeth Fisk, and Newton Fisk, agai'nst Alvarez Fisk and Charles Watts, éxeéufors of the late Abijah Fisk, for the sum of IllOCi,000, with legal interest thereon from the 13th- December, 1845, until paid,with-costs of suit. In other respects the judgment is affirmed, the appe'llo© paying, the costs of this appeal.