On Application for a Rehearing. In an application for a rehearing, counsel for Arthur Thompson, F. B. King and C. W. Sharp complain that we erred, among other things, in relying upon certain reasoning contained in Cox v. Von Ahlefeldt, 50 La.Ann. 1266, 23 So. 959, as authority for the proposition that a forced heir, who has been deprived of his legitime by an excessive donation made by the person from whom he inherits, is vested with a greater right than a mere right of action for a revendication of the property donated to his prejudice. Counsel assert that the holding in Cox v. Von Ahlefeldt, supra, that the forced heir becomes vested with an ownership of an undivided interest in the estate to the extent of his legitime at the date of the donor's death, was overruled by the Court three years later when the case came back on an appeal from a decision on its merits. Cox v. Von Ahlefeldt,105 La. 543, 30 So. 175.
A careful examination of the long opinions in the case reported in 105 La., extending from page 544 through page 589,30 So. pages 175 through 219 (not including the space devoted to the dissenting opinions), does not sustain the contention *Page 514 of counsel that the Court retracted or disavowed the reasoning contained in its previous decision. It is proper to say that the Court limited or restricted the nature of the ownership of the forced heir in the effects of the succession so that his rights were subject to prescription.
When the matter was remanded to the lower court for trial on its merits, in compliance with the decision in 50 La.Ann., the defendants pleaded the prescription of five years provided by Article 3542 of the Civil Code. This plea was based on the theory that plaintiffs' action was in reality one for the reduction of an excessive donation. The plea was sustained. On their appeal to this Court, plaintiffs contended that, in view of the holding of the Court in 50 La.Ann. they, as heirs of Susan Robinson (who was a forced heir of Beirne), had obtained a vested ownership in the succession from the date of Beirne's death to the extent of Susan Robinson's legitime and that Article 3542 was inapplicable. They argued that it was not incumbent upon Susan Robinson, as a forced heir with seisin of her legitimate portion, to bring a suit to be restored to the legitime when ownership had already vested in her. Thus, the Court was confronted with a conflict between the provisions of Articles 940 et seq. and 1607 et seq., which deal with the ownership of the forced and other heirs from the moment of death, and Articles 1502, 1504 and 3542, which declare that the donation in excess of the disposable *Page 515 portion is not null but only reducible and that the forced heir must bring his suit within five years. On the first hearing the Court decided, by a majority of three to two (Justices Watkins and Blanchard dissenting), that the plea of prescription was well founded except as to a minor heir, as to whom prescription did not run. On rehearing, the original decree was reinstated by a majority of three to one, Justice Watkins having died in the interim.
A reading of the original majority opinion in the case reveals that the author attempts to demonstrate that the Court, in 50 La.Ann., did not positively decide with respect to the vesting of ownership of the forced heir but left the matter open for future consideration. However, we are more concerned with the decision on rehearing wherein the final views of the Court are set forth. Justice Monroe, as organ of the Court on the rehearing, re-examined the entire case and discussed thoroughly the question which is pertinent to this matter. He pointed out the difference between our Code and the French law with respect to donations which exceed the disposable portion, viz., that, under the Code Napoleon, such donations were absolutely null, whereas, under Article 1502 of our Civil Code, it is specifically provided that donations exceeding the quantum which may be legally disposed of to the prejudice of forced heirs are not null but only reducible to that quantum. In view of the difference *Page 516 between the Codes, it was resolved that the ownership vesting in the forced heir of the succession effects in an amount necessary to satisfy his legitime was not full ownership but one of a qualified nature. The exact words used by the Court in its conclusion are as follows:
"Whatever, therefore, may be the views of the French writers as to the proper interpretation of the French Code, and however well founded, there can be no doubt that the Civil Code of this state has been interpreted to mean that the ownership and seisinof the forced heir is so far qualified that the testamentary donee of an interest including or impinging upon his legitime may lawfully hold possession as owner until such forced heirdemands the reduction of the donation." (Italics ours). 30 So. 214.
It will be seen from the foregoing that the Court, far from overruling its previous decision in 50 La.Ann. respecting the vesting of an ownership in the forced heir of an amount necessary to satisfy his legitime from the moment of death, specifically recognizes such ownership and seisin. It, however, held that the ownership and seisin of such forced heir is of a qualified nature — qualified to the extent that the donee may lawfully hold possession until the forced heir demands the reduction of the donation. But, obviously, from the moment the forced heir demands a reduction of the donation, the possession of the donee *Page 517 becomes unlawful unless the forced heir has lost his right to be restored to the legitime by the accrual of prescription.
In the instant case, since prescription has not been pleaded in the lower court or here, Jesse Thompson's possession of the property in controversy became unlawful from the moment the forced heirs demanded that the property be returned to their father's succession.
The other contentions made by counsel in their application have been fully disposed of by the original opinion.
The application for a rehearing is refused.
HAMITER, J., adheres to his dissent.
O'NIELL, C. J., dissents from the refusal to grant a rehearing.