The only condition on which a testator can give to one of his children the disposable quantum to the prejudice of his other children, without its being liable to be brought back into the succession, is for him to expressly declare that this excess disposition is intended to be over and above the legitimate portion coming to such preferred heir.
If this intent is not so declared, then the amount given in excess of the légitime of the heir must be returned to the succession for an equal division.
If this is not the meaning of article 1501 of the Civil Code, then I confess that I am incapable of comprehending plain English.
The article 1233 of the Civil Code does not change or modify the requirements of article 1501. It merely permits the use of equivalent terms to express the intent of the testator but demands that such terms must unequivocally express the intent of the testator to make the disposition an extra or an advantage portion.
The decision handed down herein kills the very letter of the two articles, in holding that *Page 747 the intended preference is not required to be expressed in the language of the Code, or in terms of equivalent meaning, but that the mere fact of giving a preferment in the donation itself carries with it the presumption or inference that the testator intended that the donation should be regarded as an advantage over the other heirs.
It is unfair in my judgment to the compilers of the Code to convict them of the grossest kind of stupidity in writing into article 1501 a meaningless and senseless condition or proviso.
For it seems to me clear that, if a disposition to one forced heir to the prejudice of another forced heir carries with it on its face a presumption that the testator intended the gift to be an advantage, then there was no sense in writing into the article the requirement that the intent to give an advantage should be unequivocally expressed.
It appears plain to me, therefore, that the court here has gone beyond its duty of interpretation, and has usurped the function of the Legislature in declaring that the intention of the testator is to be arrived at by way of presumption or inference, when the lawmaker has in plain English declared that such intention must be expressed.
The decision herein not only kills the letter of the articles of the Code, but it breaks the uniform line of decisions of this court applying the two articles as written.
In Champagne v. Champagne, 125 La. 408, 51 So. 440, this court held:
"Equality between heirs of the same degree is the cardinal principle of our law of inheritance, and, in order that it may be secured, `collation is always presumed, where it has not been expressly forbidden.' Whatever is given by a father to a child is presumed to have been given as in advance of the portion which the child may, one day, expect to receive from the succession, and that portion, in the absence of express declaration of the *Page 748 parent to the contrary, can be no greater than the portion of another heir in the same degree; hence what has been so received must be collated or accounted for, in the partition of the inheritance."
In Succession of Ford, 130 La. 442, 58 So. 141, the testator gave all of his property to the six children of his second marriage and $1 each to the four children of his first marriage. The will did not contain an express declaration that the disposition to the children of his second wife was to be an extra portion of his estate, nor did he use words showing unequivocally that that was his intention.
The judgment of the lower court set aside the will, so that the heirs of both marriages would participate equally and alike. That judgment was affirmed by this court on the plain language of article 1501 of the Code.
The court did not rule in that case, as the court now holds in this case, that the mere fact that the testator gave all of his property to one set of his children and $1 each to the other set, carried with it a presumption that an extra portion was intended, but on the contrary said:
"In the absence of direct expressions bequeathing or donating property, the intention must be unmistakably expressed, conferring an advantage."
In the case of Succession of Fath, 144 La. 467, 80 So. 659, the testatrix disregarded the law which reserved two-thirds of her estate to her forced heirs and gave seven-ninths of her estate to one group of heirs, to the disadvantage of two other groups.
The question there presented for decision is precisely the question here presented, viz.: Was the legacy of all the real estate to Mrs. Christopher Fath and her six children intended by the testatrix as an advantage or extra portion to those children? The court answered by saying that the will did not contain the words, "preference," "advantage," *Page 749 "extra portion," or "dispense with collation," and the equivalents of those words were not to be found in the will. The court therefore refused to write into the will by presumption and inference the sacramental words by saying, as the court in effect says here, that the testatrix would not have given all of her property — in that case seven-ninths — if she had not intended it to be an extra portion.
In Succession of Ledbetter, 147 La. 776, 85 So. 908, the deceased left two sons, one of whom had children, the other had none. After making certain special legacies the will gave to one of the sons one-half of the remainder of the estate, and the question arose whether this was to be regarded as an extra portion.
The present Chief Justice, as the organ and speaking for a unanimous court, said:
"The bequest of one-half of the remainder of the estate to Dr. Marion A. Ledbetter cannot be given in addition to his legitimate portion, or to the prejudice of the legitimate portion due the other forced heir, because the testator did not declare that the bequest was intended to be over and above the legitimate portion" — citing as authority article 1501, Civil Code.
The organ of the court in that case, who happens to be the organ of the court in this case, after quoting article 1501 of the Code, says that:
"The inference is that, when no such declaration has been made by the donor or testator, a donation or bequest to one of his children is not intended to be over and above his legitimate portion."
That expression was in harmony with the Code and the jurisprudence.
That case is in direct conflict with the holding in the present case. In the one case, *Page 750 where a will gives more of the disposable portion to one heir than to the other, in the absence of any express declaration that it is intended as an extra portion, the court says that the inference is that the testator did not intend the gift to be over and above the legitimate portion.
And, right about, in the present case the court holds that, where a testatrix gives all of her property to one heir and cuts the other out altogether, without the declaration required by the Code, the will is good as to all of the disposable portion, which happens to be one-half in the instant case; the inference being that the testatrix intended to give such disposable portion as an extra portion.
If the will in the Ledbetter Case, which gave more than the légitime to Dr. Marion Ledbetter without saying that it was to be an extra portion, was a nullity, I am unable to comprehend how the court can now say that the will in the instant case, which gives all of the property to one of the two forced heirs without a declaration that it was to be as an extra portion can be held to be a valid will.
The way I construe the will in the instant case is that the testator had no intention of giving to the one heir the inheritance as an extra portion, but, on the contrary, the will plainly discloses an intention to give all of the property to the one heir, to the absolute exclusion and disinherison of the other heir, and in violation of all statutory law and the jurisprudence of this court.
The will should be annulled, as it was so decreed by the lower court, and the two heirs put on a basis of equality, as the law plainly requires, in the absence of an express declaration of the testatrix that she desired one heir to enjoy a preference over the other heir.
I therefore dissent. *Page 751