On Application por a Rehearing,
The salient complaint is levelled against the allowance of the disposable portion and usufruct, claimed by the widow.
The brief in support is a mere repetition of what had been pre_ viously said and written on the subject, on behalf of the plaintiffs and an ingenious criticism of the opinion in the ease attacking it on matters of secondary importance, without, in the least, impairing its solidity and correctness on the main issue.
I.
The petitioners rely explicitly on a decision which we had not thought proper to notice specially, and which, they con tend, has an immediate favorable bearing; that is the case of Grayson vs. Sanford, 12 Ann. 646.
In that suit, it appears that the testator had bequeathed to his widow the usufruct of his property, and in case of a suit for a partition by any of his children, all the property he could dispose of by law forever.
There was brought such suit and the widow claimed the usufruct, but not the disposable portion.
The court said that the principal question was, whether she was entitled to the usufruct or to the disposable portion, and that the solution of the issue depended on the interpretation of the will.
The question did not arise, whether the widow was entitled to both the usufruct and the disposable portion, for the plain reason that it *544was not the intention of the testator that she should have both, but either the one or .the other.
He willed her the usufruct and eventually the disposable portion.
It is true that the court gave her the disposable portion — i. e., one-third — there being more than three children ; but it does not appear that she ever claimed that portion included the usufruct over the share of the deceased in the community, and hence the court did not pass upon it. It could not have rendered judgment ultra petitum, or for more than was at issue.
There is to.be found no precedent in the reports in which both the usufruct and the disposable portion as known previous to the passage of the act of 1844 were claimed by the surviving spouse.
The rulings in 9 Ann. 398 and in 13 Ann. 424 have no bearing- upon the present controversy. The first relates to matter within the first provision of the act, and the second has already been met in the opinion.
The construction placed by the petitioners on the purport and tenoi of the act of 1844 or Article R. C. C. 916, is the result of a confusion of ideas on the subject. They seem to consider that certain articles of the Code of 1825 form part of the organic law and are not susceptible of repeal, or amendment by the law-making power; but such is not the case. The Legislature can amend laws.
The act of 1844 has surely modified those articles, so that the rights which the surviving spouse had, when there existed a community with the deceased, prior to that legislation, are broader eventually to-day, and that the same extend over the share of the deceased in the community in the shape of a usufruct, for a time, varying according to certain circumstances stated, subject to the right of the predeceased spouse of disposing by will, so as to defeat that usufruct.
We have not held that the share constituting the legitime reserved to forced heirs has been decreased, or may be encumbered by a testator.
The share accruing to such heirs is the same to-day as it ever was, with this difference, that it is encumbered, not by the testator, but by the law, with a usufruct in favor of the surviving spouse iu community when the predeceased has not by his will determined otherwise.
We hold that a spouse in community can legally bequeath to the survivor the disposable portion of his or her estate, as it always was known, and may confirm in his or her favor, the asufruct provided by law, either by remaining silent or by expressing himself clearly on the subject, the language used, whether a bequest or a ratification, being-immaterial.
*545II.
After a review of what we said on the question of the $20,000, included in the $27,630.55, and claimed by Mrs. Moore for as much reimbursed to her by her husband, in satisfaction of coupons lent him by her, we think it preferable that the whole matter be left ppen for future consideration, in the proceeding'which the heirs may bring against Mrs. Moore for an account.
Our opinion will, therefore, be accordingly considered as silent on the subject. The same may be said of that portion of the decree which alludes to the New Orleans donation.
This disposition embraces the surplus of the $20,000, namely the $7635.55, which will have also to be accounted for.
III.
We have not considered the $10,720.58 to which the petition for a rehearing refers, as having been deposited in bank to the credit of Mrs. Moore, after October 20, 1885, and which are said to belong to Moore or his succession. We did not deem them at issue by the pleadings. The door remains open for any claim which the plaintiffs may have on this or any other subject not expressly passed upon-, when they will call on Mrs. Moore for an account of anything which is not hers.
IV.
Neither did we allude, for a like reason, to the city consolidated bonds alleged to have been taken from the bank box, between Moore’s death and the day of inventory by Mrs. Moore, in satisfaction of her claim of $2000, which the plaintiffs admit to be due her. The liability of Mrs. Moore for these bonds remains also a matter for future consideration.
V.
Neither did we concern ourselves with the alleged donation made to Mrs. Gibbons, a daughter of Moore, as there was no issue on the subject. Necessarily, if the donation was made and is subject to collation, it will have to be deducted from the disposable portion, when ascertained.
VI.
It was a matter of indifference, for the purposes of the opinion, to consider the value of the United States bonds at Moore’s death.
All effects donated, to whomsoever, or illegally withheld, will have to be fictitiously or actually added to the property left by Moore and ’ *546in actual existence, as his. at the time of his death, and will have to be appraised at their value then, in order to ascertain the disposable portion.
VII.
Finally. We see no reason to change the conclusion previously reached, that the bonds, which are payable to bearer, and the title to which is transmissible without any indorsement or assignment by mere delivery, are not subject to any formality, save that of tradition and acceptance.
To make the alterations mentioned, it is unnecessary to .grant a rehearing.
It is, therefore, ordered and decreed that the original judgment herein be amended so as to eliminate from it such portion as refers to any donation made in New Orleans, and that, in other respects, it remains undisturbed.
Rehearing refused.
Mr. Justice Fenner files a concurring opinion. Mr. Justice Watkins adheres to his original opinion on the question of usufruct and concurs in other respects. Watkins, J.I make the following extract from the brief of Mrs. Moore’s counsel, viz:
“John T. Moore died on 29th March, 1886, in this city, leaving nine children, or their descendants, and a surviving spouse, the mother of said children j all Ms property belonged to the community which had subsisted between him and his surviving widow, Agnes Jane Bvrne, to whom he was married in 1845.
“ The plaintiffs in these suits are the minors Flanagan, represented by their natural tutor, who had married one of the daughters of the deceased, and the minor Hickey, represented by his natural tutor, who had married another daughter, and Julia, another daughter of the deceased, who married John T. Moore, Jr.
“ All the unmarried children of the deceased, and also Mrs. Gibbons, a married daughter, living in St. Louis, adhere to their mother in this controversy.
“ John T. Moore died testate, having executed a will dated 20th October, 1885, and a codicil dated 27th February, 1886.
“ The will is in these words : ‘ All the property I am possessed of consists of community property. I give, devise and bequeath unto my wife, Agnes Jane Byrne Moore, the usufruct during her natural life of all the property I may die possessed of, community or not community. *547I hereby appoint my said wife executrix of this my last will and testament, with seizin of my entire estate, and without any bond or security whatever, and without an inventory of my estate.’
“ The codicil, after giving a special legacy of $5000 unto Mrs. Burke, a sister of the deceased, and a special legacy of $5000 to the Society of St. Yincent de Paul, proceeds as follows:
“ ‘ I-give and bequeath unto my said wife, Mrs. Agnes Jane Byrne Moore, the disposable portion of all the property, real and personal, movable and immovable, in whatsoever the same may consist, and wheresover situated, I may own or possess at the time of my death, and to that end I constitute my said wife my universal heir and legatee.
“ ‘ 1 do hereby declare that this is a codicil to the last ivill and testament, already referred to, as having been made by me by act before W. J. Castell, late a notary public in this city, on 20fch October, 1885, whieh said last loill and testament shall be and remain in full force and effect.''
“Tbe plaintiffs in these cases demand the immediate possession and enjoyment of their share of the succession of the deceased, free from the usufruct of the surviving widow.”
The act of 1844 in relation to the survivor’s legal usufruct of his share in the community, was, in its revision in 1870, incorporated into the Civil Code as Articles 916 and 917, and the former is couched in these words, viz:
“ In all cases, when the predeceased husband, or wife, shall have left issue of the marriage with the survivor, and shall not have disposed, by last will and testament, of his or her share in the community property, the survivor shall hold in usufruct, during his or her natural life, so much of the share of the deceased in such community property as may be inherited by such issue,” etc.
The question for decision is: Whether or not the deceased disposed, by last will, in favor of his wife, “ of his * ” share in the community property.”
What was the “ share in the community property,” of which he could have disposed by last will in favor of his surviving widow — his entire estate consisting of his half of the community property.
His will bequeathed, in her favor, “ the disposable portion of his property.” Now, inasmuch as his half of the community property was his estate, he, necessarily, bequeathed one-third of his half of the community property, and he could not have validly bequeathed her more. Ergo, the deceased did dispose, by last will, “ of his share in *548the community property” — i. e., the share in it of which he could legally dispose by last will.
What is the necessary result ?
In my opinion it is, that the surviving widow cannot “ hold in usufruct so much of the share of the deceased in such community property as may be inherited by such issue.”
It must be carefully observed that the phrase, “share in the community property,” is repeated in the cited article, and as repeated, one serves to interpret the other
Paraphrase, and state the sentence affirmatively, thus:
In case the predeceased husband shall have left issue of his marriage with the survivor, and shall have disposed, by last will, of “his share in the community property, the survivor shall (not) hold in usufruct * * so much of the share of the deceased in such community property as may be inherited by such issue.'1'1
Now, I respectfully submit, that, if the true intent of the Legislature was, and the true meaning of the law is, that, in order to have the effect of destroying the legal usufruct of the survivor, the last will of the deceased should have disposed of his half of the community property, the second clause of said article would be rendered nugatory and meaningless, for the obvious reason that there would remain nothing “ to be inherited by such issue.”
The law contemplated that the bequest should leave something that might “be inherited by such issue.” The law would have been inconsistent with itself, if it were otherwise, because “ the issue of the marriage ” are forced heirs.
To my thinking, the conclusion is irresistible, that when, as in this case, the deceased husband, leaving more than three children as “the-issue of his marriage with the survivor,” has bequeathed to her the disposable portion of his estate — it being one-half of the community property — the remaining two-thirds of such half is liberated from the-widow’s legal usufruct, and passes to “ such issue” in full ownership.
This two-thirds is “ so much of the share in such community property” as would remain after the widow’s one-tliird is subtracted therefrom ; and is “ so much of the share in such community as may be inherited by such issue.”
I understand that the question here was squarely presented, and as-squarely decided by the Court, in Forstall vs. Forstall, 28 Ann. 197, to which reference is made in the opinion of the Court.
The Court say: “This is a controversy between the surviving widow and universal legatee of Edmond J. Forstall and the children,. *549the forced heirs, in regard to the share of the deceased in the community property; the widow contending that she is entitled to one-third, the disposable quantum, and to a usufruct of the two-thirds reserved by law to the numerous heirs of the deceased; and the heirs contending that they are entitled, in full ownership, to the two-thi/rds reserved to them by law.n
* # is*1***#
“ Edmond J. Forstall disposed in favor of the surviving widow by last will and testament, bequeathing to her his share of the community property. As there are more than three legitimate children, the legacy must be reduced to one-third, and the heirs are entitled, in full ownership, to two-thirds of the próperty of their father.
“ The surviving widow is not entitled to the usufruct of this two-thirds, because the deceased disposed, by last will and testament, of his share of the community property.
-» * * * * * * * * *
“ Where there has been no testamentary disposition of the disposable share of the predeceased husband or wife in the community property, the survivor shall be entitled to a usufruct during his or her natural life of so much of the share of the deceased in such community property as may be inherited by such issue. The condition upon which the survivor shall have a usufruct is, that the predeceased husband or wife shall not have disposed of his or her share — that is the share that he or she was permitted by law to dispose of.”
That, case was argued and decided on the theory that the legacy of the widow was not only reducible, but reduced to the disposable quantum. That was all she claimed under the will. As thus presented the instant case is precisely the same.
The argument is made in support of the defendant’s contention that the entire share of the deceased is meant that the deceased could have bequeathed to his children his half of the community property, and that such bequest could dissolve the survivor’s usufruct and no other.
But I deny that the deceased could have made such a will. An excessive donation mortio causa is valid only for the disposable quantum, because the law vests the remainder in the forced heirs.
In the succession of Schiller, 33 Ann. 1, this court considered and interpreted a will couched in these words, viz:
“ It is my will and desire that my debts be paid, and that my estate be distribtited among my legal heirs, according to the laws now in force in Louisiana.”
*550The Court says : “ The question presented simply is:
“Whether, by the phrase used, Schiller has or not disposed of Ms share in the community. If he has, his three children have inherited his half therein free from their mother’s usufruct. If he has not, they have inherited it subject to that usufruct during widowhood.
* * # # * * # * *
“ It is manifest that he has disposed of his estate, that is, of all the property belonging to him at his death, in favor of certain persons, and in certain proportions. Thatproperty consisted of Ms half interest in the community between him and Ms wife,” etc.
The court held this language to mean that the deceased’s one-half of the community property “ should accrue unburdened, and be delivered at once, to his three children.” Bat they did not say that such one-half passed to them by the will. On the contrary, they do say:
“ The children inherit the naked ownership of two-thirds of the one-half of their father in the community property by the effect of the law,they inherit the remaining one-third, and the enjoyment of the entire half, to the exclusion of their mother’s usufruct, by the effect of the will of their father, who, by abstaining from making any will, could have permitted his wife to enjoy such half as usufructuary during her widowhood.”
In this opinion the following propositions are distinctly announced, viz:
1. That the will of the deceased disposed of his share in the community property.
2. That his estate was his share in the community property.
3. That the three children inherited two-thirds thereof by the effect of the laxo.
4. That they inherited the remaining one-third by the effect of the xoill.
5. That the children were entitled to the enjoyment of the half to the exclusion of their mother’s usufruct.
These conclusions, in my opinion, are correct, and confirm those I have herein expressed.
They are in exact accord with those entertained by our predecessors, as found reported in Grayson vs. Sanford, 12 Ann. 647, in which the Court said :
“ The principal point at issue in this cause is, whether the surviving widow is entitled to the usufruct of the half of the community belonging to the estate of her deceased husband, or whether she shall take the portion thereof which her husband could dispose bylaw.”
*551The intimation is clear that she could not be allowed both.
Thereupon the court decided that “ the. rights of the widow are fixed by the will to the disposable portion,” and declared her entitled to one-hálf of the community property, in her own right, and to one-third of her deceased husband’s share in said community ; and the legal heirs —of whom there were seven — to the remaining two-thirds of same, in full ownership and to a decree of partition.
That opinion describes with precision and accuracy the claims of the forced heirs of Mr. Moore, and clearly defines their legal righls. It is my opinion that the legal usufruct of his widow, their mother, was broken by her acceptance of the benefits of his will, and that his forced heirs are entitled to be put in to immediate possession of their inheritance.
For these reasons I cannot concur in this part of the opinion and decision of the majority.
Separate Opinion.
Fenner, J.Under the light thrown on it by the able brief for rehearing, I have given additional consideration to the interesting question touching the usufruct. To my mind it is perfectly clear that articles 915 and 916 of the Civil Code announce the policy of the law concerning the disposition of community property at the death of one of the spouses. That policy is, that the survivor shall have the usufruct of the share of the deceased therein in two cases, viz: .1. Where the deceased has left no ascendant or descendant. 2. Where he has left descendants, issue of the marriage with the survivor, in which case the usufruct extends only to the portion inherited by such issue.
But these, like most other provisions for legal inheritance, are subjected to the power of testamentary disposition by the decedent. They are based upon the assumption that the legal dispositions conform to the natural desires and wishes of the deceased in absence of any expression of a contrary will. But when he has exercised the testamentary power, and has not left his property to be disposed of by the law, but has himself directed how it shall go, so that those who take it, take under the will and not under the law, then the will must be executed and so much of the community property as passes uuder the will passes fiee from the usufruct. Hence the.law says that the usufruct shall accrue only when the decased “ shall not have disposed by last will or testament of his or her share in the community property.” Why f Because when he has thus disposed of his share, he has left nothing for the law to operate upon, but has subjected the whole to *552the domination of his own will. Even if the testamentary donation be excessive and be reducible to the disposable portion, such reduction enures only to the benefit of the forced heirs, and not of the surviving spouse who stands deprived of the usufruct because it was the plainly expressed will of the testator that she should be deprived of it.
But when the deceased has disposed of only part of his share, even though that part be the whole disposable portion, he leaves the balance to be disposed of by the law, free from any expression of his own will in reference thereto, and the issue of the marriage, inheriting solely under and by virtue of the law, must take subject to the burden which the law has imposed upon it, and which the testator has not interfered with, viz: the usufruct.
In this case the testator has added a clear expression of his own wish that his wife should enjoy the usufruct accorded by the law of so much of the share of the deceased in such community property as may be inherited bysuch issue.”
It is said, however, that this trenches upon the legitime of the forced heirs, by adding to the whole disposable portion the usufruct of the rest. Suppose it does. It is the law which so operates, and the légitime is a mere creature of law which it may alter at pleasure.
I am unable to understand why the policy of the law which attaches the usufruct to the whole when there is no will, should not equally apply to the residue when there is only a partial will, arid still less am I able to discover any judicial authority to add to the plain legislative expression, “ his or her share in the community,” the words “ or any part thereof,” as claimed by counsel for appellees.
It would require a strong current of authority to overcome my clear convictions on this subject.
I find but a single decision directly in point and that is Dénegré’s case, which is unreasoned and unreported.
Lee’s case, 9th Ann. 398, arose under Article 915, and as the decedent left an ascendant, the article did not apply.
Clarkson’s case 13th Ann. 524, did not concern these articles of the Code at all.
Schiller’s case, 33 Ann. 1, harmonizes fully with the views above expressed because we held that the whole estate was disposed of by the will.
Grayson vs. Sanford, 12 Ann. 646, though containing Meta hostile to our views, may be reconciled on the ground that it was doubtful whether the will did not intend to deprive the widow of the usufruct in case the contingency arose in which she took the legacy of the disposable portion.
I therefore adhere to our original opinion on this point.