Milne's Heirs v. Milne's Ex'rs - 17 La. 46 (1841)

Rule:

Two things must concur to enable a legatee to take under Louisiana laws: 1st. He must be in existence at the time of the opening of the estate; 2d. He must have capacity to receive at that time, if the legacy be absolute; if it be conditional, it is sufficient if the capacity to receive exists at the time of the fulfillment of the condition. La. Code art. 1460.

Facts:

The Legislature of Louisiana passed two acts incorporating two institutions by the style or name mentioned in the testator's will. The institutions, asylums for orphans, claimed bequests under the provisions of said will. The executors allowed them and expended money for the buildings, all of which items of expense were opposed by the heirs, who claimed the bequests as lapsed legacies for want of capacity to take. The probate court entered judgment dismissing the opposition. The heirs appealed. 

Issue:

Were the legacies made to the two institutions null and void? 

Answer:

No.

Conclusion:

The court affirmed the judgment, noting that nothing short of an express prohibition in the law could defeat the testator's purpose. The court found that the testator had made a strong and positive declaration with respect to the disposition of his property and a technical objection drawn from provisions of law, not perhaps applicable to such cases, could not defeat his purpose. The court concluded that the controversy had to be determined by the provisions of Louisiana statutes, and in them the court found nothing which made it the court's duty to reverse the judgment under review. According to the court, the direction of the testator to his executors to establish the asylums mentioned in the Will, and hand over the legacies to them when incorporated, was not in violation of the provision of the Code which declared that substitutions and fidei commissa were abolished.