Succession of Simms

SANDERS, Justice

(dissenting).

Before us is the last will of Mrs. Lillie Weir Simms, who died in Houston, Texas, on May 1, 1957. Condensed to its essentials, the will leaves the testator’s residuary estate “in trust to [named trustees] * * * to be held and administered by them. * * * for and during the natural life of my said grand-daughter [who is designated as income beneficiary] * * * and after her death * * * said properties shall pass to my great-grandchildren [named in the will].

The question presented is whether this disposition is a prohibited substitution1 or a valid trust2 under Louisiana law.

Holding that the disposition is a prohibited substitution, the majority has struck down the will. I disagree.

Under a well-established rule, the court must construe the will so as to maintain its validity, if it can reasonably do so. Thus, if the will is equally susceptible of two interpretations, the court is constrained to adopt the one that saves the life of the will. LSA-C.C. Arts. 1712, 1713; Girven v. Miller, 219 La. 252, 52 So.2d 843; Succession of Feitel, 176 La. 543, 146 So. 145; Swart v. Lane, 160 La. 217, 106 So. 833; Lelong v. Succession of Lelong, La.App., 164 So.2d 671.

To constitute a prohibited substitution, the testator must have made a double disposition of the same property in full ownership to successive legatees. LSA-C.C. Art. 1520; Succession of Thilborger, 234 La. 810, 101 So.2d 678; Succession of Fertel, 208 La. 614, 23 So.2d 234; Tucker, Substitutions, 24 Louisiana Law Review 439, 490-491.

Perfect ownership gives the right to use, to enjoy, and to dispose of property in the most unlimited manner. LSA-C.C. Art. 491; Giroir v. Dumesnil, 248 La. 1037, 184 So.2d 1. As we said in Giroir v. Dumesnil:

“Perfect ownership gives the right to use, to enjoy, and to dispose of property to the exclusion of others. * * * Such ownership consists of three elements united in the same person: usus, or the right to use; fructus, or the right to the fruits; and abusus, or the right to dispose of.”

Under the will, the trustees receive the property “in trust” to be “held and ad*249ministered by them.” The granddaughter is income beneficiary, that is, she receives the income. The great-grandchildren are principal beneficiaries, that is, the property is to be distributed to them after the death of the income beneficiary. The will was so construed by the court in the Louisiana probate proceedings in the Succession of Lillie Weir Simms, by the judgment of possession rendered July 21, 1958.

When the will is thus properly construed, the tenure of the trustees is not one of full ownership within the definition of prohibited substitution. Moreover, such a trust has full sanction in the Trust Estates Law of 1938.

For the reasons assigned, I respectfully dissent.

On Application for Second Rehearing.

. Art. IV, Sect. 16, Louisiana Constitution; Art. 1520, Louisiana Civil Code.

. Act 81 of 1938, known as the Trust Estates Law of 1938 (formerly R.S. 9:1791-2212) applies to this will.