Same Case—Ok a Re-hearing.
Spofford, J.Upon a reconsideration of the facts of this case, and especially considering that the plaintiffs have acquiesced in the judgment of the court benw which ordered the defendant, in lieu of the usufruct bequeathed to him, to take in full property the disposable portion, we have come to the .conclusion that a sufficient abandonment is shown, to entitle the plaintiffs to recover.
Upon the other point, on which a re-hearing was granted, we are of the opinion that the law intended to cast upon the forced heir a certain part of the succession in full property, and that, to allow a testator to bequeath to a stranger an usufruct for life of his whole estate, (when he has forced heirs,) would bo to impair the legitime reserved to such heirs of right. “No charges or conditions can be imposed by the testator on the legitimate portion of forced heirs.” O. 0.1703.
There is great force in the reasons given by French authors for the doctrine which, as already stated, appears to prevail among them, that an usufruct of more than the disposable portion of the revenues is an usufruct “ exceeding the disposable portion,” in the sense of that Article of the Napoleon Code which corresponds to our Article 1486.
It is, therefore, ordered and decreed, that the judgment heretofore rendered in this cause be set aside, and that the judgment of the District Court be affirmed, with costs.