As pointed out in my dissenting opinion when this case was originally before us, "A specific legacy of shares of stock in a *Page 324 corporation does not carry with it dividends accruing prior to the testator's death, whether in cash, property, or stock * * *." 69 C.J. 402, § 1452. This rule of law is universally recognized and followed in all of the courts in the land, including the State of Louisiana, and it is only when a contrary intention is manifested in the will itself that it has no application.
It is conceded in the majority opinion that this rule of law universally obtains and that it would be applicable in this case except for the fact that "what the testatrix intended to bequeath was not the mere paper certificates for 20 shares of the capital stock but was the interest in the capital stock of the corporation which these shares represented" or, as otherwise stated in the majority opinion, "The specific thing bequeathed in this case was the interest of Mrs. Quintero in the capital stock of The Times-Picayune Publishing Company * * *."
According to the express words used by Mrs. Quintero in her will, she thereby made and established "the following particularlegacies of the following particular objects and request that my executor deliver said legacies to the named legatees as soon as may be * * *" and then stipulates in the second paragraph"TO Dorothy Spencer I give and bequeath * * * 20 shares of stockof The Times-Picayune Publishing Company * * *." These are the only words in the entire will with reference to the bequest in controversy and in my humble opinion the conclusion *Page 325 reached in the majority opinion that it was her interest in the capital stock of The Times-Picayune Publishing Company that the testatrix thereby intended to bequeath cannot possibly be eked out from them.
The holding in the majority opinion is in direct violation of those rules laid down in the Revised Civil Code and the jurisprudence thereunder for the court's guidance in interpreting wills, for while it is our duty to give effect to the expressed intention of the testator we are without right to presume or to resort to conjectural or problematical reasoning in order to arrive at a conclusion as to the intention of the testatrix. In other words, the province of the court is to construe wills, not to make them.
Moreover, the conclusion reached in the majority opinion does violence to those express pronouncements in the code declaring that "Every legacy under a particular title gives to the legatee, from the day of the testator's death, a right to the thing bequeathed * * *" (Article 1626), and this "shall be delivered with everything that appertains to it, in the condition in which it was on the day of the donor's decease." Article 1636. Everything that appertains to a particular legacy according to the authorities are those things that are indispensable to its use for the purpose for which it was destined, and "If it can not be ascertained whether a greater or less quantity has been bequeathed, it must be decided for the least." Article 1717.
For these reasons I respectfully dissent from the majority opinion on rehearing. *Page 326