¶1for a re-hearing:
¶2We do not pretend that the will is entirely free from difficulty, snd we cannot say that no embarrassment is created, in arriving at the true construction of that remarkable instrument. But after weighing, and well weighing, all the circumstances connected with the making of the will, which point to the Madam as owner; being, moreover, utterly unable to reconcile a bequest of “cequ’illui restera aprés le morl.” with a recognition of the residuary legatees, as the owners of Michel’s lands and slaves now on hand: and having had our view strengthened and confirmed, by the cogent reasoning of Mr. Justice Buchanan, and the peculiarity of the opinion of the Chief Justice, we feel it our duty again to raise the point of ownership, for the consideration of your Honors, and for such final disposition, as the good judgment of the court may suggest. We are confident ourselves of the correctness of the opinion which we entertain; hut being satisfied, that wo can, in argument, add nothing to what has already been said relative to the'question of ownership, we are content to leave that point in the hands of the court, without further remark.
¶3We may he wrong in supposing, from the opinion of the court, that an inference might be drawn, that Mrs. Michel, as an imperfect usufructuary, is compelled to furnish security: arguing however, upon the hypothesis, that such security is intimated by the court, we beg to maintain before your honors.
¶41st. That as a perfect usufructuary, she is not obliged to give security.
¶5A perfect usufruct, is of things which the usufructuary can enjoy without changing their substance, though their substance may he diminished, or deteriorated, naturally, by time, or by the use to which they are applied; and in case of a perfect usufruct, Article 552, Civil Code, expressly provides, that security may be dispensed with.
¶6Indeed, your honors, in this very suit, have not only held that Madame Michel, *360in case she enjoys the property as a perfect usufructuary, is relieved from giving bond, but, have gone so far, as to affirm the decree of the District Judge, which relieved the plaintiff from so doing.
¶72d. As an imperfect usufructuary, there is no greater obligation to give security, than in case of perfect use.
¶8in making good this po-ition, we may, we think, successfully use the argument, that ihe greater includes the less; for it seems to us, that if Madame Michel is permitted to use and enjoy the property itself, without giving security ; she ought not, in case she allows her usufruct to attach upon the proceeds of that property, as the will and the opinion of your honors permit, he subjected to more onerous conditions than would he imposed upon her, as a perfect usufructuary. We can readily imagine, that if the deceased had left forced heirs, this court might, with the view of preserving to them their legitime, under Articles 1840-1 1845, Civil Code, compel an imperfect usufructuaiy to give such security as would secure the forthcoming of the property or monies; hut where there are no forced heirs, and consequently no provision of law, directly or indirectly, restricting the condition of an imperfect usufructuaiy, it is the duty of your honors, under the law, to place the former in the position of one, who in the use of the property itself, has been dispensed from giving security, viz: to granito him the imperfect use of the property, without any liability to turnish bond.
¶9Your honors, in the opinion delivered by Justice Ogden, have intimated, and in the decree have left it to be inferred, that Madame Michel, in case of a sale of the land and slaves, and a contemplated usufruct of the proceeds, shall put the money out at interest, on good, security, with the consent of ihe residuary legatees, , Sc.: and in that view of the case, we respectfully and conscientiously urge upon the court, there is error.
¶10Have your honors made the intimation complained of by us? Are we correct upon the point of fact? The following quotations, from the opinion of the court, enable us to answer those questions, most emphatically in the affirmative.
¶11“ The rights of those who are entitled to the naked ownership, must he in like manner transferred to the proceeds of the sale, subject to the wife’s usu-fruct; the wife’s usufruct must be one in a legal sense. Article 556, Civil Code, declares, &c.”
¶12That your honors, in the opinion complained of by the counsel for Madame Michel, have intimated, and under such intimation, have left it to be inferred from' the decree, that their client, in caso she should assume the position of an imperfect usufructuaiy, must put out the money at interest on good security, and with the consent of the residuary legatees, cannot be doubted; and we proceed to show the court that there is error in such opinions.
¶13This is evident, because,
¶141st. Article 556 Civil Code, (under which your honors have made the intimation, that the sums of money, arising from a sale of the testator’s real estate and slaves, must be put out at interest, on good security, with the consent of the owner,) is not applicable to a case, in which the usufructuaiy has been dispensed from giving security.
¶15Art. 556, provides, if the usufructuary does not give security, or a special mortgage, then, in case of a perfect, usufruct, "the immovables and the slaves, subject to the usufruct, shall be hired or leased out at public auction, and in case of an imperfect usufruct, the sums of money, the use of which has been given, shall be put out at interest, on good security, with the consent of the owner, and if he refuse, by the authority of the Judge. The language of this article to us, is clear and unambiguous, and contemplates obtaining the consent of theownerand security from the borrower, only in those cases in wiiich the usufructuaiy is bound by law to give the security or the special mortgage, contemplated by Articles 551 and 555, of the Civil Code; and has no applicability, where under Article 552, security has been dispensed with, in favor of the usufructuaiy, in tlie act by which the usufruct is established.
¶16Let us, however, for the sake of argument suppose, that, under ordinary circumstances, Article 556 of the Code, may be applied to the case of an usufructuary, who has been dispensed with giving bond; the court, nevertheless, erred in intimating that Madame Michel, must., in case of becoming an imperfect usufructu-ary, obtain the consent of the residuary legatees, and require bond from the borrower, with stipulation of interest, &c., because, the testator has expressly relieved his surviving-widow from those onerous conditions; and there is no reason why the wishes of the deceased, should not, in that respect, he carried out.
¶17*361The last will and testament, authorizes the Madame to sell the plantation slaves, and all other property, according to her own wish, without any let or hindrance. Words, full and comprehensive, and as clearly relieving the surviving widow from obtaining the consent of the residuary legatees, &c., as rhough the testator had said “ it is my wish that Mrs. Michel shall not be compelled to put out any sums of money, proceeding from the sale, at interest, or on security; nor shall she be required to obtain the consent of the owner, and if he refuse, the authority of the Judge.”
¶18In the words of the will “ pour elle en jouir, en paix, sans qui’il lui soit donné aucun trouble quelconque, par aucune personne lui donnant autant de droit, qu’il est en mon pouvoir de lui dormer. Et comme íl est presque impossible de faire culti-ver l’habitation aprés ma mort je 1’autorise á la vendre, ainsi que toutes les mitres propriétés, osclaves et autres, suivant son désire et volonté et qu’elle le trouve con-venablc, sans qu’il lui soit donné aucun trouble ni empeehement quelconque.”
¶19As to the intention of the testator, there is no room for doubt; and there being no forced heirs, and.no rights to be- cared for, acquired outside of the will, we know of no reason, why the wishes of the deceased, should not be carried out.
¶20The will is the compass which must direct courts of justice in seeking the intentions of the testator, and that intention, when discovered, must direct the decision of the court. Oxly, et al., v. Clay, executor, 7 Rob.,428, Civil Code 1705 ; Withers v. Withers, 8 L. R. 495.
¶21“It is our duty,” says the Supreme Court, “to ascertain the intention of the testator,” Clarke v. Preston, 2 An., p. 581.