This appeal is taken by the defendants from a judgment of the Court of the Ninth District, sitting in the parish of Pointe Coupee, rendered in favor of the plaintiff, against Virginia Esneault, one of the defendants and wife of Sidney A. Laeoste.
This judgment was for the recovery of a piece of land, having one arpent front by eighty arpents in depth, with the improvements thereon, the same having been bequeathed to her in usufruct,and the property to her children, by the last will and testament of the late widow Simon Porche. The judgment-is against the defendant as the universal legatee of the testatrix, as recognized by a judgment of this Court, rendered on the 3d February, 1852, affirming the judgment appealed from. Marcellin Major et al. v. Virginie Esneault, 7 Annual Reports.
The bequest to the plaintiff was for three arpents of land in usufruct, but as she held two of them under a good title, the litigation is confined to her rights in the one arpent front, by the depth of eighty acres.
The testatrix says, in her will, after instituting Virginio Esneault her universal legatee: “I give and bequeath, in consideration of her good and faithful services, to the free griffe woman Oeeile, three arpents front of my land, to be taken from the line of the plantation of Honoré Frnre, with the whole depth, to be enjoyed by her during her life in usufruct, the said land, after her death, to belong to her children.”
"We do not concur in the opinion of the counsel for the defendants, that the legacy constitutes what is called an universal title. It is the legacy of a distinct object, and is of that class called particular legacies. The plaintiff, as a particular legatee, is not bound to contribute to the payment of the debts. The succession is rich, and, as an usufructuary under a particular title, the plaintiff is not bound to discharge the debts for which the property bequeathed is mortgaged. Code, Art. 575. The universal legatee by law, and in this case, by the express command of the will, is bound to discharge all the debts of the succession.
At the time of the decease of the testatrix, the plaintiff had eight children living—the youngest was bom years before the date of the will.
If the effect of this testamentary disposition is held to vest the property in the heirs, legal or testamentary, a substitution would bo created in relation to it, and the disposition itself would fail.
A disposition must be understood in the sense in which it can have effect, rather than that in which it can have none. Code, 1706.
In avoiding this construction, which killeth, we are carrying into effect the intention of the testatrix, and have in view her purpose of beneficence, which was to recompense a faithful and deserving servant.
The clause of the will is badly expressed, but there can be no doubt, we think, as to whom were the object of the charity of the testatrix. We think it vested the property in the children of the plaintiff, and gave her the usufruct, to terminate on her death, provided her life should not extend beyond the term assigned [by law] to the duration of the usufruct.
The judgment of the District Court-is, therefore, affirmed, with costs.