Partee v. Succession of Hill , 12 La. Ann. 767 ( 1857 )

Spoffobd, J.

The late James Pick made the following bequest in his last will:

“ I give and bequeath to my niece Mary R. Todd, wife of Sterling H. Lester, and to her heirs, forty thousand dollars, and appoint as trustees, to invest the same and pay to her after receipts thereof, the interest annually, my friends James Lea MeLane and Willia/m B. Pa/rtee, or either of them, in case of resignation or death of the other.”

By another clause of the will, the legacy was not demandable until seven years had elapsed after the testator’s death.

That time having expired, and MeLane, one of the persons named as “ trus. tees,” having resigned or declined to act, Partee brought this suit against the representative of Pick's succession, for so much of the legacy as he averred to be due to Mrs. Mwy R. Lester. That lady, assisted by her husband, intervened in the suit, and denied the right of the trustee, Partee, to claim the sum bequeathed to her, averring that he had become wholly insolvent, and that the clause of the will appointing- him trustee was void by the provisions and poli, cy of our law. She claimed a judgment in her own fayor for the fund sued for by Partee. Her pretensions were sustained in the lower court, and Par-tee has appealed.

It is clear that the bequest was to Mary R. Todd, wife of Sterling 3. Lester, and her alone. No interest in this legacy was to vest in any one else. If the clause referring to the trustees be considered as mandatory, in other words, as a condition or mode clogging the title of Mrs. Lester, then it is void, and must be considered as not written. New titles cannot be invented by testators. Absolute ownership bequeathed to a specific person, cannot be crippled by the appointment of supervisors of a class unknown to our laws, who shall, for the period of their natural lives, keep the owner out of possession against his will, and manage for him what ho is capable of managing for himself Eidei-commissa, the trusts of the English law, cannot be created in Louisiana and enforced in our courts. C. C. 1507, 1500; Clague's Widow v. Clague's Executor, 13 La. 7; Harper v. Stanborough, 2 An. 381; Succession of Franklin, 7 An. 412.

If the clause concerning the trustees he regarded as advisory merely, it need not be expunged from the will. If the legatee had chosen to avail herself of the testator’s recommendation, Partea might have sued; for her acquiescence would have made him her agent, and he would have derived his powers from her, not from the mere force of the testator’s will. We have expressed our views upon this subject in the case of the Society for Orphan Boys v. New Orleans, 12 An. 63.

But as she repudiates his authority, he is acting against his principal and cannot be heard; the will gave him no such interest in this legacy as would entitle him to demand it against the remonstrance of the party to whom it was bequeathed. She is capable of standing in court, and the judgment in her favor s' b" » naued.

Judgment affirmed.

Mekkkik, O. j., took no part in the decision of this cause, not having heard the argument.