The language of the law. Part Latin, part Anglo-Saxon, all confusing.

Today’s terms are… um… confusing.

Here’s the fact pattern: there were three brothers, and two went south and one went west and…

No, really.

I mean, really. Would I kid you about something like that?

Okay, okay, if you want to be really picky about this, there were actually six brothers, one of whom died young, one of whom plays no role in this story at all, and one of whom is essentially a bit player since all he did of any great significance here was die.

They were the Fisk brothers, sons of Abijah Fisk and Alice Adams of Massachusetts. In order, they were Alvarez, born 19 Jan 1784; Abijah Junior, born 2 Dec 1785; Isaac, born 23 Feb 1790; Sereno (I), born 8 Nov 1792, died 3 Mar 1797; Stebbins, born 4 Dec 1798; and Sereno (II), born 21 Feb 1802.¹

Actually, three of the brothers went south: Alvarez, Abijah and Stebbins ended up in New Orleans where they became very wealthy men. The baby, the second child named Sereno, is the one who went west, ending up in Wisconsin.

There’s nothing in the records to suggest they didn’t get along perfectly well, as brothers go. And then in 1837 Stebbins Fisk was the first of these four to die.

He left a will that contained this proivision:

To my brother, Abijah Fisk, I give, devise, and bequeath the sum of $ 100,000, for his sole use and benefit, without any security whatever, during his natural life. At his death it shall be divided and given equally to the children of Sereno Fisk, my younger brother.²

Now no matter how you cut it, $100,000 in 1837 was a whole lot of money. Thanks to my friend Harold Henderson,³ we can find sites to calculate just what that legacy was worth in today’s dollars: somewhere between $1.9 million and $2.5 million in cold hard cash.

Worth fighting about, in my book.

And that’s just what the Fisk family did: they fought about it.

Not immediately, of course, because the money was left to Abijah “for his sole use and benefit… during his natural life.” But December 1845 rolled around and Abijah died as well.⁴ And in Abijah’s will, he left $5000 each to two men, a building to the City of New Orleans to be used as a public library, and the balance of his estate “to the children of (his) brother, Alvarez Fisk.”⁵ One of the executors of Abijah’s estate was Alvarez, whose children were to get the bulk of Abijah’s estate.⁶

Now at that point, Sereno waltzes into New Orleans, says his kids are now entitled to the $100,000 since Abijah is dead, so hand it over, nicely, and… Yeah, right. You know how that went over, don’t you?

The case went all the way to the Louisiana Supreme Court twice — once on a matter of procedure and the second time on the merits. First, the Fisk estate executors took the position that Sereno hadn’t been appointed guardian of his children in Wisconsin so he couldn’t represent them in Louisiana. The Louisiana Supreme Court finally ruled that, yes, actually, it made a whole lot of sense for Sereno to be the children’s tutor and bring the case “as the father and the friend of the minors, to liquidate their claim, and cause the amount of it to be brought into court.”⁷

The second time the case for to the Louisiana Supreme Court was on the merits — the underlying who-gets-the-money question. And what it all boiled down to in the end was that the original legacy wasn’t a fideicommissa but merely a usufruct as to which Abijah was a usufructuary with the legacy ultimately ordered to the children of Sereno in esse.⁸

Perfectly clear, isn’t it?

Tutor. Fideicommissa. Usufruct. Usufructuary.

Welcome to the wonderful wild wacky world of the Civil Law.

As explained by Claire Mire Bettag, “Unlike common law, which is rooted in ancient English law, civil law derives from Roman law. It is usually written as a code and then adopted legislatively as a comprehensive body of law.”⁹ And Louisiana law — its Civil Code — was “strongly inspired by the French code.”¹⁰ So it should be no surprise that — since the Code Civil of France had an entire title devoted to this oddball thing called usufruct — the Louisiana code did too.

Article 525 of the Civil Code defined usufruct as “the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantages which it may produce, provided it be without altering the substance of the thing.”¹¹ The usufructuary was the person who had that right of use or enjoyment of the property, but not the ownership of it.¹²

And that’s what Sereno was arguing on behalf of his children as their tutor (akin to a guardian in the common law¹³): Abijah had had the use of the money during his lifetime and got all the profits from it, but at Abijah’s death, it should get paid over to his children. In effect, he said, it was nothing more or less than a life estate in the cash.

The estate executors, on the other hand, argued that this was a particular type of transaction barred by the Louisiana Civil Code called fideicommissa — singular fideicommissum — a gift to one person with directions to pass it through to someone else.¹⁴

The court sided with Sereno. It pointed out that the code specifically said a gift could be made of a usufruct to one person and the property ownership to another.¹⁵ That meant Sereno’s children owned the cash and Abijah only got the right to use it during his lifetime. But to make that work, the gift had to be limited to specific children, not any child ever born to Sereno, so the court said only those children who were living when Stebbins died were the owners of the cash.¹⁶

In other words, the original legacy wasn’t a barred one but merely a life estate in which Abijah had the right to use the money in his lifetime but with the cash eventually going to those of Sereno’s children who were alive when Stebbins died. And, the court added, “At the decease of Stebbins Fisk, in June, 1837, but two of the plaintiffs were born, or conceived; Mary Elizabeth, born in 1834, and Newton, born in 1836. The next in age, Caroline, was not born until September, 1838.”¹⁷

And if you’re descended from or related to any one of these Fisks, getting names, relationships, dates and places of death for some of the brothers and the exact years of birth of Sereno’s children and even a month for the youngest, is worth working your way through the language of the law.

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