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The legal usufruct authorized by La. Civ. Code Ann. art. 916 does not apply only in intestate successions. The testator may confirm in his will the usufruct that the surviving spouse inherits by operation of law under art. 916. Additionally, he may donate mortis causa the disposable portion of his estate to her in full ownership. In practical effect, the surviving spouse is permitted to cumulate the real usufruct in her favor with donations mortis causa that do not exceed the disposable portion. The testator is not permitted, however, to burden the legitime with a usufruct beyond the period authorized by art. 916, under La. Civil Code Ann. art. 1710 (1870). Hence, the legal usufruct, even when confirmed in the testament, terminates by operation of law upon the surviving spouse's remarriage.
Gilbert Spence Waldron passed away, survived by his widow, Mrs. Katherine L. Waldron, and their only child, Mrs. Thelma Waldron Denn. The decedent's estate consisted solely of community property. He bequeathed to the widow the usufruct of his estate for life, less that portion that the daughter was entitled to. After the will was probated, the daughter filed suit to reduce the usufruct in favor of the mother, alleging that it impinged upon her forced portion. The district court rendered judgment in favor of the widow and the appellate court reversed. The widow appealed and the state supreme court granted certiorari.
Did the widow’s usufruct of the legitime impinge upon the daughter’s forced portion, thereby warranting the reduction of the usufruct?
The Court reversed the decision of the appellate court and reinstated the decision of the district court. The Court found that the widow's usufruct of the legitime was created by virtue of La. Civ. Code Ann. art. 916 and not by the will and that the usufruct was legal and did not impinge upon the legitime to the extent that it gave the surviving spouse the same rights that she inherited by operation of the law under. Art. 916. Only to the extent that the allowance of the usufruct would have given the widow greater rights than those she inherited by operation of the law could it have been considered testamentary. As the widow had not remarried, and as the usufruct would be regarded as testamentary only at such time as the widow should remarry, the widow was entitled to a usufruct of the forced portion until remarriage.