The opinion of the majority holds that:
"The judgment appealed from is wrong also in so far as it maintains that the universal or residuary legacy was not a conjoint legacy and that the heirs at law, instead of the four remaining residuary legatees, should take the fifth of the residue of the estate because the testamentary disposition in favor of Willis W. Williams was without effect, in consequence of his dying before the death of the testatrix."
The reason for holding that the four remaining residuary legatees are entitled to the whole of the residuary legacy, and that the share therein that would have fallen to Willis W. Williams, had he survived the testatrix, does not fall to the legal heirs of the latter, is because the legacy is conjoint, and therefore Williams' part falls to his colegatees by accretion.
The right of accretion is in the nature of an exception to a general rule, for article 1706 of the Civil Code provides that:
"The right of accretion, relative to testamentary dispositions, shall no longer subsist, except in the cases provided for in the two following articles."
From this it would seem that the right does not exist unless it comes clearly within one of the exceptions referred to in the article quoted. See, also, C.C. art. 1709. One of these exceptions is provided by article 1708, and relates to cases where the thing bequeathed is not susceptible of being divided without deterioration. That exception is not pertinent here, and there is no contention that it is. However, the exception provided by article 1707, which is the remaining exception, is pertinent, and the phase of the case under consideration must be decided according to the article setting it forth. The article, which sets that exception forth, reads as follows: *Page 816
"Accretion shall take place for the benefit of the legatees, in case of the legacy being made to severalconjointly.
The legacy shall be reputed to be made conjointly when it is made by one and the same disposition without the testator's having assigned the part of such [meaning each] colegatee in the thing bequeathed."
From the foregoing it is clear that, where the testator has willed a thing to several, without assigning the part of each legatee in the thing bequeathed, the legacy is conjoint, for then each legatee is called to the whole legacy, and therefore, if one of them should die before the testator, as each legatee is called to the whole legacy, the remaining legatees take the entire legacy, to the exclusion of the legal heirs of the testator, as if they alone had been named as the legatees, but where the testator assigns to each legatee a part in the thing bequeathed, then the legacy is nonconjoint, and should one of the legatees die before the testator, the part assigned to him, in the absence of any contrary provision in the will, falls to the legal heirs of the testator, for in such instance, each legatee is not called to the whole of the thing bequeathed, but only to the part assigned to him. Therefore, in order to determine whether, in any given instance, accretion takes place, the thing bequeathed being divisible in kind, it is necessary to determine whether each legatee was called to the whole of the thing bequeathed or only to a part thereof. Marcadé made a similar observation in commenting on article 1044 of the Code Napoleon, which is similar to our article 1707, when he said:
"Therefore, in order to know if there is room for accretion to the profit of the survivor (or successor) it is necessary to consider whether the survivor has been called to the whole." Marcadé, vol. 4, pp. 144, 145, quoted in Succession of Dougart, 30 La. Ann. 268, 271.
The legacy, under consideration herein, reads as follows: *Page 817
"The remainder of my estate, after the payment of the special legacies hereinabove provided for, I will and bequeath unto my nieces, Blanche Edge, born Williams, wife of J.M. Edge, Margaret Burnet, born Williams, wife of Joe H. Burnet, Mary Jane Russell, born Williams, wife of Wright Russell, and to my nephews Thomas G. Williams and Willis W. Williams, share and share alike."
By the foregoing disposition it will be observed that the testatrix willed and bequeathed the remainder of her estate to five legatees, share and share alike. It is the purpose of this opinion to show that she did not by that disposition call each legatee to the whole of the residue, but only to a fifth thereof, as much so as if she had bequeathed in so many words one-fifth of it to Blanche Edge, one-fifth to Margaret Burnet, and so on until each of the five legatees had been left a one-fifth of the residue, and that this construction is supported by authority, and that, such being the correct construction, the legacy is not a conjoint one.
Dalloz, in commenting on article 1044 of the Code Napoleon, in "Les Codes Annotés," under that article, No. 39, says:
"Following an opinion, there is an assignation of parts not only when the testator has distinctly determined the portion which he gives to each, a case which never has any difficulty, and which the Legislature has no concern to regulate, but also, in the case where the testator, after having bequeathed to several persons the same thing, adds that it is bequeathed by virile portions or by equal parts. [Italics mine.] Jurisprudence Générale, Entre Vifs, 4410" (quoted approvingly in Succession of Hunter, 45 La. Ann. 262, 267, 12 So. 312).
It will be recalled that in the disposition under consideration the bequest is to five legatees, share and share alike. This, it will be observed, is a bequest in equal parts or portions, which according to the quotation from Dalloz shows an assignation of parts, in bequeathing the thing, which we may add, as a necessary deduction from the French Code and from our own, makes the legacy nonconjoint. *Page 818
Toullier, in his work, Droit Civil Francais, vol. 5, Nos. 690 and 691, recognizes in effect what is said by Dalloz, concerning a bequeathing in equal parts or portions, and further draws the distinction between the making of a bequest to several legatees in equal parts and the making of one to several legatees, to be divided by them in equal parts. He says:
"But this right [the right of accretion] ceases if the testator, in uniting the legatees in one and the same disposition, assigns to each of them what is given him in the thing bequeathed. They are then called conjoint by words only, conjuncti verbis tantum. * * *
"Nevertheless, it must be distinguished whether the assignation of parts is found in the disposition itself, or solely in the manner of its execution. In the example, here given, `I give to Peter, Paul, and John the Cornelian estate in equal portions,' the distinction and assignation of parts is in the disposition itself; they make a part, they are inseparable; thus, in principle, each one has the right only to that portion which is especially assigned to him. (Italics mine.)
"On the contrary, if it is said `I give to Peter, Paul, and John the Cornelian estate, [for] to be divided between them in equal portions,' they remain conjoint re et verbis in the first member of the phrase, which contains the disposition and which includes, in principle, the destination of the totality in favor of each of the legatees. They have no parts assigned to them save in the second member, which is an accessory phrase united to the first by conjunction (pour) `for,' and is attached to determine the manner of executing the disposition, without otherwise destroying the rights given in the first member to the legatees through which they have, nevertheless, the right of accretion of the parts which become caducous."
Baudry-Lacantinerie is to the same effect as Dalloz and Toullier. See Baudry-Lacantinerie des Donations et des Testaments, vol. 2, p. 431, No. 2906.
In Parkinson v. McDonough, 4 Mart. (N.S.) 246, the distinction between bequeathing a thing to several in equal parts, and bequeathing it to them, to be divided among them in equal parts, is recognized, and the decision in that case, rendered in 1826, rests *Page 819 largely upon that distinction, and Toullier, from whom we have freely quoted, is cited in support of the distinction. The legacy in that case, according to the rules quoted above, unlike the legacy in the present case, was conjoint, but the principle which should be applied in this case as a part of our jurisprudence was there recognized. In fact, if that principle be taken out of the case cited, the case loses much of the reasoning upon which it is based. In the case cited, the will read:
"I will and bequeath to the orphan children of my old friend Godfrey Duher, and which are now under my charge, and are named Mary, Nancy, James, and Eliza, one share, or one-eighth part of all my property, to beequally divided among them. * * *" (Italics mine.)
The court was impressed with the fact, from the surrounding circumstances, that the testator intended the legacy to be conjoint. On the other hand, the court, in commenting on the phraseology of the will, recognized that the construction that would be most readily given to it would be that there was an assigning of parts in the thing bequeathed, which would make the legacy nonconjoint. The court, after calling attention to the contention of the appellants which invoked the rule stated by Toullier for determining whether a legacy is conjoint, said:
"The distinction between a bequest of a thing to many in equal portions; and one wherein a testator gives a legacy to two or more individuals, to be divided inequal portions, appears at first view extremely subtle and refined. The difference of phraseology in those two modes of bequeathing is so slight as not readily to convey to the mind any difference in ideas, and can only produce this effect by separating the members of the sentence in the latter phrase; in truth to create two distinct sentences, each complete in itself with regard to sense and meaning; the one relating to the disposition of the will, the other to its execution. We might hesitate much in adopting this method of construction, were it not sanctioned by the authorities cited in behalf of the appellants; the doctrine contended for is fully supported by *Page 820 the Commentary of Toullier on the 1044th article of Code Napoleon, which we have already shown to be precisely similar to that of our own Code."
The opinion in the case cited was rendered over a century ago. Therefore, the rule stated by Toullier for the construing of such dispositions was incorporated in our jurisprudence over a hundred years ago. So far as my knowledge extends, no ruling has been made by this court in conflict with it, until the opinion in the present case was handed down. In the majority opinion in the present case that case — that is the Parkinson Case — is cited; the disposition of the will that was under consideration there is quoted, and then, without further comment on the case, it is said: "Surely, there is no difference in the meaning between `to be equally divided among them' [which was the expression used in the will in the Parkinson Case] and `share and share alike'" (which is the expression used in the present case); the majority of the court thereby meaning that there is no difference between a disposition in a will reading "I will and bequeath certain property to certain legatees, to be equally divided among them," and "I will and bequeath certain property to certain legatees share and share alike." I most respectfully submit that the very decision, cited by the majority, shows that there is a difference, and makes use of the distinction in order to reach a conclusion in the case.
The case of Mackie v. Story, 93 U.S. 589, 23 L. Ed. 986, is substantially to the same effect as the Parkinson Case, and is in accord with it.
The Succession of Schonekas, 155 La. 401, 99 So. 345, is so similar to the present case that it is said in the majority opinion that it is not easily distinguishable from it. In my opinion the two cases cannot be distinguished. In the Schonekas Case the disposition in the will was: *Page 821
"I give and bequeath unto my daughters, Delia Schonekas, wife of C.B. Kern, and Lillie Schonekas, divorced wife of Herman Roos, share and share alike, the disposable portion of my estate; that is so much, as the law will allow me to give to them in addition to what they are entitled to as my children."
The legacy here was held to be nonconjoint, because the bequeathing, share and share alike to the legatees, of the property affected the disposition of the property, and was therefore principal and dispositive, and not accessorial and regulation, or in other words, because the willing of the property to the legatees, who numbered two, was a willing of one half of it to one and a willing of the remaining half to the other, and not a calling of each legatee to the whole legacy. I submit that the decision is correct and well supported by authority. I may here add that the majority are incorrect in saying that the opinion conceded that, had the expression "share and share alike" been placed elsewhere in the will in that case, it would have made the legacy conjoint. The majority evidently have reference to a concession on page 412 of 155 La. (99 So. 349), which volume contains a report of the case. The concession there made, however, far from sustains the construction placed upon it.
In closing I submit that a disposition in a will, bequeathing to several legatees certain property, share and share alike, is a bequeathing to each, in equal portions, a part of the property, as much so as if the testator had willed, say, one-fifth to one, one-fifth to another, and so on until all the legatees received an equal part. In other words, the expression used in the foregoing example and in the will is a dividing of the thing into parts by the testator, and the calling of each legatee to his part, and not each to the whole of the thing bequeathed. The legacy is therefore not conjoint.
For the foregoing reasons, I dissent from the decree handed down by the majority. *Page 822
On Application for Rehearing.