Frederick Lambert, a bachelor, died in New Orleans on June 25, 1942, leaving as his heirs at law three brothers, Robert Vincent Lambert, Albert Lambert and William L. Lambert, and leaving an estate inventoried at $186,765.11, composed principally of real estate and cash. He left a will dated July 18, 1927, in which he bequeathed 21 cash legacies to his relations and some friends, $1,000 to his church, and the burial lot to Robert Vincent Lambert and Albert Lambert. Among the cash legacies was one for $10,000 to the other brother, William L. Lambert. The residue of the estate was bequeathed to Robert Vincent Lambert and Albert Lambert — thus:
"After all my debts and obligations are paid, I leave the residue of my estate to my brothers Robert Vincent Lambert and Albert Lambert share and share alike."
The two residuary legatees were appointed executors without bond and with seizin from the moment of the testator's death.
Albert Lambert died on December 21, 1938, that is, three and a half years before the testator died. *Page 666
The will was probated at the instance of the surviving legatee, Robert Vincent Lambert. After paying the debts of the succession and the special legacies, he was placed in possession of the residue of the estate by an ex parte judgment of the court, without opposition.
More than two years afterwards, William L. Lambert, and a nephew named Albert E. Lambert, son of the deceased Albert Lambert, filed suit, as the heirs of the testator, to recover from Robert Vincent Lambert one-half of the residue of the estate.
The plaintiffs contended that the residuary legacy to Robert Vincent Lambert and Albert Lambert was not a conjoint legacy, because of the phrase "share and share alike," and hence that they, the plaintiffs, as the heirs of the deceased testator, inherited the one-half share which would have gone to Albert Lambert if he had survived the testator. Soon after the suit was filed, one of the plaintiffs, William L. Lambert, died, and his universal legatee, Mrs. Rose Segari Lambert, was made a party plaintiff in his stead.
The judge of the civil district court dismissed the suit on an exception of no cause or right of action, and the plaintiffs appealed. The majority opinion and decree of this court now sustain the plaintiffs' contention that the residuary legacy to Robert Vincent Lambert and Albert Lambert was not a conjoint legacy. *Page 667
The question presented is a simple one. It is a question of statutory construction, and was settled by at least seven decisions by this court, one by the Supreme Court of the United States in a Louisiana case, and one by the United States Circuit Court of Appeals for the Fifth Circuit in another Louisiana case. In all of the jurisprudence there is not a decision that lends any support whatever to the decision which is being rendered in this case.
It is not claimed in the prevailing opinion in this case that the author has discovered something new — something like an oversight or inadvertence — or any special error — on the part of any one of his predecessors. Nor is it claimed that time has wrought a change in the meaning of the trite phrase which is being construed — "share and share alike." On the contrary, the only reason given in the prevailing opinion in this case, for overruling the jurisprudence on the subject, is that the opinion of the judges who subscribe to this prevailing opinion does not accord with the opinion of their predecessors as to the meaning of the phrase "share and share alike."
This statute, which has been construed one way for 120 years and is being construed the other way now, is the second paragraph of article 1707 of the Civil Code. The article reads as follows:
"Accretion shall take place for the benefit of the legatees, in case of the legacy being made to the several conjointly. *Page 668
"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."
The only question to be decided therefore, in this case or in any given case where the testator bequeaths a legacy to several legatees by one and the same testamentary disposition, and adds such an expression as "share and share alike," or "to be equally divided among them," is whether such an expression means that the fractional part that is bequeathed to each colegatee shall be calculated according to the unmber of them named in thebequest, or means that the fractional part shall be calculatedaccording to the number of them who are living at the time ofthe death of the testator.
All testamentary dispositions, of course, deal with the future. In that respect they are not like donations inter vivos, which, essentially, take effect immediately. When a testator declares that at his death he gives and bequeaths the residue of his estate to two or more legatees, named in one and the same testamentary disposition, if he desires that what would be otherwise a conjoint legacy shall be a distributive legacy he must assign to each colegatee the fractional part which he bequeaths to him or her; and such an assignment of the fractional parts must be made in plain terms, dealing with the date of the will, in order to make the legacy a distributive legacy, *Page 669 as distinguished from a conjoint legacy. It was so declared in all of the decided cases, especially in Lebeau v. Trudeau, 10 La.Ann. 164, and in Mackie v. Story, 93 U.S. 589, 23 L.Ed. 986. Such an expression as "share and share alike" is not an assignment of parts in the meaning of the second paragraph of article 1707 of the Civil Code. The reason for that, of course, is that without the expression "share and share alike" a bequest made to two or more legatees by one and the same testamentary disposition is a conjoint legacy, as declared in the second paragraph of article 1707 of the Civil Code. That fact is admitted on the 17th page of the prevailing opinion in this case [28 So.2d 8] — in these words:
"Unquestionably, had the words `share and share alike' been omitted from the clause a perfect conjoint legacy would have resulted. With that omission there would have existed a bequest made to the brothers conjointly by one and the same disposition without the testator's having assigned the part of each colegatee."
The author of the prevailing opinion then says that it "is a cardinal rule of testamentary construction that each and every part of the will shall be given effect." Hence he gives the words "share and share alike" the effect of converting the conjoint legacy into a distributive legacy. He concedes of course that that is contrary to the settled jurisprudence; but he maintains that the settled jurisprudence must yield to his idea of giving effect to the words "share and *Page 670 share alike." The mistake which he makes is in giving the words "share and share alike" the wrong meaning and effect. It might as well be argued that the words "give" and "bequeath" must each be given effect, instead of being considered redundancy, as they really are. The words "share and share alike" mean that the sharing is to be done at the time when the will takes effect, that is, at the time of the death of the testator. In such a case the legatees who survive the testator are the ones who "share and share alike" the legacy bequeathed to them. If only one of them should survive the testator he takes the whole legacy; because there is no difference in that respect between a case where a legacy is bequeathed to two colegatees, and a case where the legacy is bequeathed to three or more colegatees. That also is conceded in the prevailing opinion in this case. If it were not so conceded there would be no occasion in this case to overrule the decision in the Succession of Wilcox, 165 La. 803,116 So. 192 — where there were five colegatees and only four survived — or to overrule the decision in the Succession of Maus, 177 La. 822, 149 So. 466, where there were four colegatees and only three survived. Nor would there be any occasion here for overruling any other of the decisions concerning testamentary dispositions in favor of three or more colegatees, if the court should make a distinction between a legacy in favor of only two colegatees and a legacy in favor of three or more colegatees. *Page 671
The error which is being made in this case — of overruling the settled jurisprudence on an important question of statutory construction — is caused by failure of the author of the prevailing opinion in this case to observe the distinction between donations mortis causa and donations inter vivos. He fails to observe that a donation mortis causa, unlike a donation inter vivos, deals with the future. His failure in that respect is obvious — being manifested particularly by an illustration which he gives on the 19th page of his opinion [28 So.2d 8], and which illustration he fails to observe is an example of a donation inter vivos — perhaps a manual gift. He says:
"If then the expression [share and share alike] signifies an equal division the using of it in a conversation or in a writing is to apportion one-half to each where two persons are concerned, one-third to each if there are three, one-fourth to each if there are four, and so on. Thus, if a mother says to her three children, `I give to all of you this pie share and share alike,' certainly each child is entitled to receive a definite one-third of it."
When the highest court of a state overrules a long and consistent line of decisions for the purpose merely of substituting the opinion of the overrulers for the opinion of their predecessors, the court usurps the prerogative of the Legislature, and goes contrary to the spirit if not the letter of that provision in (Art. II of) the Constitution of Louisiana, and in the Constitution *Page 672 of every state, that the powers of government shall be divided into three distinct departments — the legislative, the executive and the judicial — and that no one of these dapartments nor any person nor collection of persons holding office in any one of them shall exercise power properly belonging to either of the two other departments.
In the Constitution of Massachusetts, in article 30 of Part the First, of which Article II of the Consitution of Louisiana is intended to be a counterpart, the three-department safeguard ends with these high-sounding and appropriate words: "to the end it may be a government of laws and not of men."
If the members of the Legislature, whose duty it is to correct any mistake that may be made in the interpretation of the laws by the highest court of the State — and who in this instance have tacitly approved the interpretation which this court has given to article 1707 of the Civil Code for these many years — had changed the meaning of the article, as it is being changed now by the prevailing opinion in this case, there would be no confusion among the lawyers, or the teachers or students of the law, as to when the new interpretation of this important article of the code should have effect. It is claimed in the prevailing opinion (p. 20 [28 So.2d 9]) that the court is changing the law as effectually as it could be changed by the Legislature itself. The author of the prevailing opinion says that "all persons *Page 673 who have taken title to succession property relying on the overruled decisions will be unaffected by the change." His Honor adds:
"They have vested rights which can not be disturbed. They are protected under the law in effect at the time of the vesting of their interests."
But his Honor adds:
"Those who may receive under a future will — prospective legatees — have no vested rights in the estate concerned. The interests of beneficiaries under a will do not vest until after the death of the testator."
What reason, I ask, can the author of the prevailing opinion in this case have for believing — what assurance can he give — that his successors in office will have a higher regard for his opinion on the construction of article 1707 of the Civil Code than he has now for the opinion of his predecessors on that subject?
In the prevailing opinion in this case the fact is stressed that there was no provision in the Code Napoleon similar to article 194 of the Louisiana Code (or Digest) of 1808, which article was retained as article 1699 of the Code of 1825, and as article 1706 of the Revised Civil Code. The fact is stressed also that the Code Napoleon had no provision similar to article 197 of the Code (or Digest) of 1808 which became article 1702 of the Code of 1825 and is now article 1709 of the Revised Civil Code of Louisiana. The substance *Page 674 of these provisions is that the right of accretion, with regard to testamentary successions, takes place only in cases of conjoint legacies, or in cases where a legacy is bequeathed to two or more legatees and cannot be divided without deterioration. But the omission of these provisions from the Code Napoleon is a matter of no importance. The important fact is that these provisions have been in the Civil Code of Louisiana continuously since the year 1808; that is, long before this court first decided that the mere declaration of equality, between or among the colegatees, such as "share and share alike" or "to be equally divided among them," is not an assignment of the part bequeathed to each colegatee, in the meaning of article 1707 of the Civil Code. And the two articles of the Civil Code, which were not in the Code Napoleon, have not been overlooked in any case decided by this court.
In every case where article 1707 of the Civil Code has been construed, it has been held that the mere statement in a testamentary disposition in favor of two or more colegatees that they shall share the legacy equally is not an assignment of the part of the legacy bequeathed to each legatee named in the bequest.
In Parkinson v. McDonough, 4 Mart., N.S., 246, decided in 1826 — 120 years ago — a legacy under an universal title bequeathed to four legatees, in the following words, was held to be a conjoint legacy, *Page 675 notwithstanding the phrase "to be equally divided among them":
"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 be equally divided among them;" et cetera. [The italics are mine.]
The decision was based not on the Civil Code of 1825 but on the Code (or Digest) of 1808 — articles 195, 196 and 197, which articles were retained as 1700, 1701 and 1702 in the Code of 1825, and which are now, respectively, articles 1707, 1708 and 1709 of the Revised Civil Code. The decision was unanimous, by the court composed of George Mathews, Francois-Xavier Martin and Alexander Porter. In the opinion written by the presiding Justice Mathews it was said:
"The rules laid down on the subject of accretion, in relation to testamentary dispositions, are contained in arts. 195, 196, and 197, at page 250 of the former code. Art. 195 [now 1707] on the interpretation of which the present question depends, is expressed in the following words: `Accretion shall take place for the benefit of the legatees, in case of the legacy being made to the several conjointly. 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 each co-legatee in the thing bequeathed.'" *Page 676
The decision in Parkinson v. McDonough was cited with approval in the Succession of Wilcox, 165 La. 803, loc.cit. 810,116 So. 192, loc.cit. 194, in 1928 — 102 years after the court had decided Parkinson v. McDonough. Having quoted the testamentary disposition in that case, the court stated in the Succession of Wilcox:
"Surely, there is no difference in the meaning between `to be equally divided among them' and `share and share alike.'"
A reference to Shepard's Citations discloses that the case of Parkinson v. McDonough, 4 Mart., N.S., 246, has been cited with approval four times by this court, once by the Supreme Court of the United States in a Louisiana case, once by the U.S. Circuit Court of Appeals for the Fifth Circuit, in another Louisiana case, and once by Tulane Law Review — always on the same point of law that is presented now in the Succession of Lambert.
The next case in which this question arose was Lebeau v. Trudeau, 10 La.Ann. 164, decided in 1855 — 91 years ago. The testamentary disposition which was held to be a conjoint legacy to the eight legatees named, in that case, was written in French and was translated, literally, thus:
"After my debts [are] paid, my property shall be divided inequal proportions, among the [8] persons hereinafter named, that is to say, Lezine Lebeau, Polixene Bertrand, John Demoruelle, Emma Bertrand, Jean Bertrand, Elizabeth Wilson, Laure Grousard, *Page 677 L. H. Trudeau." [The italics are mine.]
At the death of the testator, his heirs at law, being his brothers and sisters and nephews and nieces, sued to set aside the bequest of one-eighth of the estate to Elizabeth Wilson, on the ground that she had been the concubine of the testator. The defendants, who were the colegatees in the clause of the will which purported to give one-eighth of the estate to Elizabeth Wilson, pleaded that the plaintiffs had no cause or right of action because if Elizabeth Wilson was the concubine of the testator and for that reason was incapable of receiving the legacy of one-eighth of his estate, that portion of the estate belonged to the defendants by accretion, they being her seven colegatees.
In deciding that that legacy, which was made by one and the same disposition, was made without the testator's havingassigned the part of each colegatee in the thing bequeathed, Chief Justice Slidell, for the court, said:
"Article 1700 declares, that accretions shall take place for the benefit of the legatees, in case of a legacy being made to several conjointly; and that 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 [each] colegatee in the thing bequeathed. Article 1699 declares, that the right of accretion relative to testamentary dispositions, shall no longer *Page 678 subsist, except in the cases provided for in the Arts. 1699 [1700] and 1701. And Article 1702 declares that except in the cases prescribed in the two preceding articles, every portion of the succession remaining undisposed of, either because the testator has not bequeathed it, either to a legatee or to an instituted heir, or because the heir or the legatee has not been able or has not been willing to accept it, shall devolve upon the legitimate heirs.
"Now here, the legacy is made by one and the same disposition. Is it made without the testator's having assigned the part of each co-legatee in the thing bequeathed? I think it is.
"`The assigning of the parts of each co-legatee' means something more than is comprehended in the language of this will, which, according to my understanding of it, simply directs their participation of [in] his whole estate in equal portions. I apprehend the terms used in the Code contemplate an express specification and assignment of the respective portions of the legatees, calling each to his particular part. But in the present case, there is not that specific and distinct assignment of the parts, which, in my judgment, is necessary to constitute a distinct legacy to each, of a distinct portion of the deceased's fortune. He appears to me, on the contrary, to have called them conjointly to partake equally in the totality of his estate, and has mentioned the equality of their portions forthe purpose of regulating the distribution of that *Page 679 totality. They are conjointly his universal legatees." [The italics are mine.]
Lebeau v. Trudeau is referred to in the prevailing opinion in this case (p. 10 [28 So.2d 5]) as a three-to-two decision. That is right. Chief Justice Slidell wrote the opinion for the court and Justices Ogden and Spofford concurred. Justice Buchanan wrote a dissenting opinion in which Justice Voorhies concurred. Which only goes to show that both sides of the case were considered thoroughly. The reasoning in the dissenting opinion of Justice Buchanan is the same as that on which the prevailing opinion in the present case is founded. The prevailing opinion in this case therefore is really an adoption of the dissenting opinion which was rejected in Lebeau v. Trudeau, 91 years ago.
A reference to Shepard's Citations discloses that the case of Lebeau v. Trudeau, 10 La.Ann. 164, has been cited with approval six times by this court, once by the Supreme Court of the United States in a Louisiana case, once by the U.S. Circuit Court of Appeals for the Fifth Circuit, in another Louisiana case, and once by Tulane Law Review — always on the same point of law that is presented now in the Succession of Lambert.
The next time the question arose was in 1876, in the case of Mackie v. Story, 93 U.S. 589, 23 L.Ed. 986. The legacy was as follows:
"I will and bequeath to Henry C. Story and Benjamin S. Story all properties I die *Page 680 possessed of, to be divided equally between them." [The italics are mine.]
The legatees, Henry C. Story and Benjamin S. Story, were brothers of the testator, and one of them, Henry C. Story, died before the death of the testator. The heirs of the testator therefore claimed one-half of the legacy, but the court held that that half of the legacy which would have gone to Henry C. Story if he had survived the testator belonged to the colegatee, Benjamin S. Story, by right of accretion. In so deciding Justice Bradley, for the court, said:
"The court below decided that the legacy was a conjoint one, and that by the right of accretion the whole of it accrued to Benjamin; and in this opinion we concur. The civil law does not recognize the common-law distinction between joint tenancy and tenancy in common. * * *
"But in testamentary dispositions, the civil law does make a distinction between a conjoint legacy and a legacy of separate and distinct shares in the thing bequeathed. Where the whole thing bequeathed is given to two persons, if one of them fails to receive the benefit of the disposition, either because he dies before the testator, or is incapable to take it, or refuses to take it, or because as to him it is revoked, the whole goes to the other legatee by accretion; for the whole was given to both, and it is presumed to be the will of the testator that he shall not die intestate as to any part, but that the whole shall pass by his *Page 681 will; and this, notwithstanding it may be divisible between the two legatees, if received by both."
Here Justice Bradley, after citing the opinions of several of the French commentators, proceeded with his opinion, thus:
"Many more French authorities to the same effect could be referred to; but it is unnecessary, as the Supreme Court of Louisiana has passed upon the question, and its decision is binding on us as a rule of property. In the case of Parkinson v. McDonough, 4 Mart. N.S., 246, decided in 1826, the substantive words of the bequest were the same as in the case before us, namely, `I bequeath to the orphan children of my old friend Godfrey Duher, Mary, Nancy, James, and Eliza, one-eighth of all my property, to be equally divided among them:' and the decision was, that the legacy was conjoint, and consequently, that the portion of one of the legatees who died before the testator went by accretion to the survivors. * * *
"This decision [in Parkinson v. McDonough] was followed by the same court in 1855, in the case of Lebeau v. Trudeau, 10 La.Ann. 164, which was even a stronger case in favor of assignment of separate parts than that of Parkinson v. McDonough, the words of the bequest being, `After my debts are paid, my property shall be divided in equal proportions among the persons hereinafter named.' After naming the legatees, the testator says, `I have hereinbefore *Page 682 mentioned the names of the persons to whom I bequeath all my property.' After a full discussion of the question, it was decided that the legacy was conjoint, and that accretion took place. The court uses the following language: `The assigning of the parts of each co-legatee means something more than is comprehended in the language of this will, which, according to my understanding of it, simply directs their participation of [in] his whole estate in equal portions. I apprehend the terms used in the Code contemplate an express specification and assignment of the respective portions of the legatees, calling each to his particular part. But in the present case, there is not that specific and distinct assignment of the parts which in my judgment is necessary to constitute a distinct legacy to each, of a distinct portion of the deceased's fortune. He appears to me, on the contrary, to have called them conjointly to partake equally in the totality of his estate, and has mentioned the equality of their portions for the purpose of regulating the distribution of that totality. They are conjointly his universal legatees.'"
A reference to Shepard's Citations discloses that the case of Mackie v. Story, 93 U.S. 589, 23 L.Ed. 986, has been cited with approval five times by this court, once by the U.S. Circuit Court of Appeals for the Fifth Circuit, in a Louisiana case, and once by Tulane Law Review — always on the same point of law that is presented now in the Succession of Lambert. *Page 683
The next case in which arose the question which is now presented was the Succession of Dupuy, 33 La.Ann. 277, decided in 1881. The bequest which was held to convey a conjoint legacy was written in French, and is translated thus:
"I wish and intend that all the properties which I have not disposed of by this testament and which I may leave at the time of my death, be sold and that the proceeds thereof, as well as the cash I may have in banks or other places and the amount of mortgage or other notes which might be due me, be divided, after the payment of my debts, the legacies above made, and all expenses of my succession, be divided, I repeat, between my two above named daughters, Armantine and Eugenie Labiche; Marcelite Choteau, my sister, and in case of her default Dorestan Aubuchon, her son; Marie Louise Valentin, and my nephew Jules Birot, by equal portions; naming and instituting them my universal legatees." [Italics are mine.]
One of the five legatees, Marie Louise Valentin, died before the death of the testator. The provision, in the will, which the court decided did not convert the conjoint legacy into five separate legacies was the provision that the testator wished and intended that the residue of his estate should be dividedby equal portions among the five residuary legatees named in the will. In so deciding the court (33 La.Ann. page 282) stated: *Page 684
"Having never acknowledged his natural daughters, the testator had no forced heirs, and was, therefore, free of any restrictions in his testamentary capacity. In unmistakable language he instituted Louise Valentin, his two natural daughters, his sister and his nephew, as his universal legatees, providing specially that all property which he did not dispose of by particular legacy should be equally divided between them. [Italics are mine.] Now, Louise Valentin having died before him, the legacy in her favor became without effect (C.C. Art. 1697), and the portion intended for her, being thus undisposed of, inured by accretion to the benefit of the other universal legatees. C.C. Art. 1707; Parkinson v. McDonough, 4 [Mart.], N.S., 252; Lebeau v. Trudeau, 10 La.Ann. 164; Succession of Foucher, 18 La.Ann. 409."
The author of the prevailing opinion in the present case (p. 10 [28 So.2d 5]) attempts to distinguish the case of Succession of Dupuy from the present case by saying that the contest in the Succession of Dupuy was not between the heirs of the testator and the surviving residuary legatees, but was a suit by the testamentary executors to compel an adjudicatee at a judicial sale to accept the title. But, what difference does that make, so long as the question, as to whether the residuary legacy was a conjoint legacy, was squarely presented to the court for decision and was decided by the court? *Page 685
A reference to Shepard's Citations discloses that the Succession of Dupuy, 33 La.Ann. 277, has been cited with approval twice by this court, once in a Note in 44 L.R.A., N.S., p. 791, and once by Tulane Law Review — always on the same point of law that is presented now in the Succession of Lambert.
The next time the question arose was in the case of Waterman v. Canal-Louisiana Bank Trust Co., 186 F. 71, 72, decided by the United States Circuit Court of Appeals for the Fifth Circuit, in March 1911. In that case the court dealt with a residuary legacy in the last will of Caroline Stannard Tilton. After bequeathing a number of special or particular legacies, in cash, to several individuals, respectively, the testatrix bequeathed several special or particular legacies in cash, ranging from $1,000 to $3,000 each, to a number of charitable institutions, which she named, and then bequeathed the residue of her estate to the same charitable institutions, thus:
"`After satisfaction of all the foregoing special legacies and bequests, and after payment of all costs and expenses in settlement of my estate, if I have remaining any besides [residue] undisposed of, I will and direct that such residueshall be divided between the beneficiaries of the charitablebequests heretofore made to various institutions; the divisionto be made pro rata, and in proportion to the amount of thespecial *Page 686 legacies already made them respectively.'" [Italics are mine.]
Among the special legacies referred to was a legacy of $3,000, "To the Home for Insane." As there was no institution known generally as "Home for Insane," it was conceded by all parties that the legacy of $3,000 for the so-called Home for Insane lapsed because of the failure of the testatrix to identify the legatee. The question then was whether, under the paragraph of the will which I have quoted, the lapsed legacy of $3,000 should be divided pro rata among the other charitable institutions named in the will, or should go to the heirs of the testatrix. That question of course depended upon whether the legacy of the residue of the estate was a conjoint legacy to the several charitable institutions, or was a distributive legacy. After analyzing the opinion rendered in Parkinson v. McDonough, 4 Mart., N.S., 246 and in Lebeau v. Trudeau, 10 La.Ann. 164, the court decided that the residuary legacy in the will of Caroline Stannard Tilton was a conjoint legacy, and hence that the legacy of $3,000 which lapsed because of the failure to identify the legatee, Home for Insane, did not go to the heirs of the testatrix but went to the charitable institutions named as colegatees — "the division to be made pro rata, and in proportion to the amount of the special legacies already made them respectively." The pertinent paragraph of the syllabus of the opinion in Waterman v. Canal-Louisiana Bank Trust Company is as follows: *Page 687
"Civ. Code La. art. 1707, provides that accretion shall take place for the benefit of legatees in case a legacy is to several conjointly, and that the legacy shall be reputed to be made conjointly when it is made by one and the same disposition, without the testator having assigned the part of each co-legatee in the thing bequeathed, and article 1709 declares that except in the cases provided by such article, and by article 1708 (inapplicable), every portion of the succession remaining undisposed of shall devolve on the testator's legitimate heirs. Testator bequeathed pecuniary legacies to a number of legatees, and then bequeathed different amounts to six charitable institutions, among which was a bequest to the `Home for Insane,' and then provided that the residue should be divided between the beneficiaries of the charitable bequests pro rata in proportion to the amount of the special legacies made to them. Held, that the residuary bequest was conjoint within article 1707, so that, on the failure of the legacy to the Home for Insane because of uncertainty, such legacy, together with the legatee's interest in the residue, passed to the other charitable legatees, and not to testatrix's heirs at law."
In the case of Waterman v. Canal-Louisiana Bank Trust Co., 5 Cir., 186 F. 71, the U.S. Circuit Court of Appeals first dismissed the suit for want of jurisdiction. An appeal was taken to the Supreme Court of the United States to review the judgment of the U.S. Circuit Court of Appeals *Page 688 dismissing the suit. On appeal the judgment was reversed and the case remanded. See 215 U.S. 33, 30 S.Ct. 10, 54 L.Ed. 80. After the case was heard and decided on its merits by the U.S. Circuit Court of Appeals (186 F. 71), application was made for a writ of certiorari to the Supreme Court of the United States and was denied. See 220 U.S. 621, 31 S.Ct. 724, 55 L.Ed. 613. The attorneys who argued the case before both courts were Messrs. E. Howard McCaleb and the then E. Howard McCaleb, Jr., for the appellants, and Messrs. Edgar H. Farrar, James McConnel, Charles E. Fenner, George C. Walsh, George H. Terriberry, H. Garland Dupre, Walter Guion and Victor Leovy, with Messrs. William C. Dufour and S. McC. Lawrason on the brief, for the appellees. That array of legal talent should convince anyone that no point of law was overlooked in the presentation of the case.
The Succession of Villa, 132 La. 714, 61 So. 765, 769, decided in 1913, is dealt with only briefly — in only five lines and one word — in the prevailing opinion in this case. The opinion in Succession of Villa deals very thoroughly with the question presented in the instant case — thus:
"Article 1707, C. C., on the subject of accretion, is as follows:
"`Accretion shall take place for the benefit of the legatees, in case of the legacy made to several conjointly.
"`The legacy shall be reputed to be made conjointly when it is made by one and the *Page 689 same disposition without the testator's having assigned the part of each co-legatee in the thing bequeathed.'
"The article of the Code just quoted exactly follows that of France, and it has received from the French courts and jurists abundant construction." * * *
"Other French authorities [besides Duranton] to the same effect could be referred to; but it is unnecessary, as we have heretofore passed upon the question, and the point is settled. In the case of Parkinson v. McDonough, 4 Mart., N.S., 246, the substantive words of the bequest were the same as in the case before us, namely:
"`I will and bequeath to the orphan children of my old friend Godfrey Duher, * * * Mary, Nancy, James, and Eliza, one share, or one-eighth of all my property, to be equally divided among them.'
"Our decision was that the legacy was conjoint, and consequently that the portion of one of the legatees who died before the testator went by accretion to the survivors. * * *
"The above decision was followed in Lebeau v. Trudeau, 10 La.Ann. 164. The language used by the testator in that case was:
"`After my debts are paid, my property shall be divided in equal portions, among the persons hereinafter named.'
*Page 690"After naming the legatees, the testator said:
"`I have hereinbefore mentioned the names of the persons to whom I bequeath all of my property.'
"After a full discussion of the question, it was decided that the legacy was conjoint, and that accretion took place."
The next case in which the interpretation of article 1707 of the Civil Code, defining conjoint legacies, was construed was the Succession of Schonekas, 155 La. 401, 99 So. 345, 346, in 1924. The testamentary disposition in that case was like the one in contest in the present case. In the Schonekas case the bequest was made in one and the same testamentary disposition, and, as in this case, was coupled with the words "share and share alike". The legacy was in these words:
"`In the event of my death, I give and bequeath unto my daughter Delia Schonekas, wife of Charles 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 and heirs.'"
Delia Schonekas Kern, one of the two legatees, died before the testatrix died. The other legatee claimed that the legacy was a conjoint legacy, and that she therefore was entitled to the share which the deceased legatee would have received if she had survived the testatrix.
Inasmuch as the bequest was made by one and the same testamentary disposition, *Page 691 the only question presented was whether the phrase "share and share alike" was an assignment of the part bequeathed to each of the colegatees, as required by the second paragraph of article 1707 of the Civil Code, in order to convert the conjoint legacy into a distributive legacy.
The case came before this court at the time when the court was divided into sections, or divisions, composed of only three judges each. The three judges who alone passed upon the Schonekas Case held that the legacy was not a conjoint legacy, but a distributive legacy, because of the words "share and share alike." The heirs of the testator did not apply for a rehearing; hence a majority of the members of the court had no opportunity to consider the question whether the legacy was a conjoint or a distributive legacy. But, in the Succession of Wilcox, 165 La. 803, 116 So. 192, 194, decided in 1928, where the court held that the phrase "share and share alike" did not convert a residuary legacy in favor of two or more legatees into a distributive legacy, two of the three members of the court who had subscribed to the decision in the Succession of Schonekas reversed their decision, and subscribed to the decision in the Succession of Wilcox. One of these two subscribers handed down a concurring opinion in the Succession of Wilcox, saying that he was then convinced that he had erred in yielding his assent to the conclusion reached in the Succession of Schonekas. *Page 692
Afterwards, in the Succession of Maus, 177 La. 822,149 So. 466, decided in 1933, all of the three justices who alone had rendered the decision in the Succession of Schonekas, subscribed to the opposite opinion in the Succession of Maus. In fact, the author of the opinion rendered in the Succession of Schonekas handed down a concurring opinion in the Succession of Maus, saying that he concurred in the decree on the ground that the legacy in the Succession of Maus was a residuary legacy. Another one of the three justices who had subscribed to the decision in the Succession of Schonekas rendered a short concurring opinion in the Succession of Maus, in which he declared that the fact that the legacy was a residuary legacy had nothing to do with its being a conjoint legacy. Inasmuch as the decision rendered in the Succession of Schonekas, by the three-judge section of the court, was promptly repudiated by two of the three judges who rendered it, and was declared afterwards by its author to be not applicable to a residuary legacy, the case should be considered as the first case in which it was decided, eventually, that the phrase "share and share alike", in a bequest to two or more colegatees, is not an assignment ofparts, in the meaning of article 1707 of the Civil Code.
In the Succession of Wilcox, 165 La. 803, 116 So. 192, 193, the bequest was:
"`The remainder of my estate, after the payment of the special legacies hereinabove *Page 693 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.'"
One of the five colegatees, namely, Willis W. Williams, died before the testatrix died. The heirs of the testatrix therefore claimed that the share which would have gone to Willis W. Williams, of the residue of the estate, if he had survived the testatrix, that is, the fifth of the residue, was inherited by the heirs of the testatrix.
But the court held that the four surviving colegatees were entitled to share by right of accretion the share which would have gone to Willis W. Williams if he had survived the testator, because the legacy was a conjoint legacy, notwithstanding the phrase "share and share alike". On that subject the court said:
"It is argued on behalf of the appellees [heirs of the testatrix] that the universal or residuary legacy was not a conjoint legacy, but a legacy of one-fifth of the residue of the estate to each of the five legatees named, because of the expression in the will, `share and share alike.' It is said that the meaning and effect of the expression `share and share alike' is the same as if the testatrix had given, in terms, to each one of the five legatees named, *Page 694 separately, one-fifth of the residue of her estate. Our opinion, to the contrary, is that the expression `share and share alike' had no particular reference to the number of the residuary legatees, or to the fractional part which each should receive of the residue of the estate, but meant merely that the residue of the estate should be divided equally among the residuary legatees, without regard for the number of them.
"Our only function is to determine and carry out the intention of the testatrix, if it can be determined from the language of the will; and, with that in mind, it seems unreasonable to suppose that the testatrix intended, in giving the residue of her estate to the five named universal legatees with the direction that they should `share and share alike,' but without even mentioning the number of them, that, if one of them should die, the remaining four should take only four-fifths of the residue of the estate. The presumption that the testatrix did not intend that any part of her estate should remain undisposed of by her will arises from the fact itself that, after giving the several special legacies to the particular legatees named, she disposed of the entire residue of her estate".
Here the court quoted in full articles 1706, 1707, 1708 and 1709 of the Civil Code, and proceeded as follows:
"The expression in the second paragraph of article 1707, `without the testator's having assigned the part of such colegatee,' *Page 695 means without the testator's having assigned the part of each colegatee. In the French text of the corresponding article — 1700 — of the Code of 1825, the words which have been translated erroneously into `the part of such colegatee' are `la part de chacun des colégataires' — meaning, literally, `the part of each one of the colegatees.' In the case before us, therefore, the residuary legacy was intended to be a conjoint legacy, because, as article 1707 of the Code provides, it was made by one and the same disposition, without the testator's having assigned the part or share of each one of the colegatees."
Here the court quoted from Parkinson v. McDonough, 4 Mart., N.S., 246, and from Lebeau v. Trudeau, 10 La.Ann. 164, and from Mackie v. Story, 93 U.S. 589, 23 L.Ed. 986, the legacy which was declared to be a conjoint legacy in each of those cases; and referring especially to Parkinson v. McDonough the court said:
"Surely, there is no difference in the meaning between `to be equally divided among them' and `share and share alike.'"
The court explained that that expression "share and share alike" or "to be equally divided among them", like the expression in Lebeau v. Trudeau "shall be divided, in equal portions, among the persons hereinafter named," and like the expression in Mackie v. Story, "to be divided equally between them," was not an assignment of the part bequeathed to each colegatee, as required by article 1707 of the Civil Code to *Page 696 convert a conjoint legacy into a distributive legacy.
In that connection the court distinguished the case of Compton v. Prescott, 12 Rob. 56, relied upon by the heirs of the testatrix, Miss Wilcox, as an example of an assignment of the part bequeathed to each colegatee in a bequest made to several legatees by one and the same testamentary disposition — thus:
"In Compton v. Prescott, the residuary legacy to four nieces of the testator was held to be not a conjoint legacy, because the testator declared plainly that he gave one-fourth of the estate to each one of the legatees, viz.:
"`To be equally divided between [among] them, that is to say: One-fourth to Amelia, one-fourth to Mary Celeste, one-fourth to Eleanor, and one-fourth to Sarah Jane.'"
But there is a marked difference between an assignment of fractional parts, such as one-fourth of the legacy to each of four colegatees, and the expression "share and share alike", which has reference to the number of legatees living when the will takes effect, i.e., at the date of the death of the testator.
In the prevailing opinion in the present case (p. 13 [28 So.2d 6]) the author quotes what I have quoted from the opinion rendered in the Succession of Wilcox; and he makes the following criticism, which seems to charge that there was inconsistency in the opinion rendered in that case — thus: *Page 697
"By this language it would seem that recognition was being impliedly given to the distinction drawn by the French commentators and incorporated in our earlier jurisprudence, and that the words `share and share alike' were being interpreted as affecting merely a division of the execution or enjoyment of the gift, although the will contained no words providing for a division operative in the future and justifying an interpretation of that kind. Later in the opinion, however, in reference to the Parkinson case, it was said that, `Surely, there is no difference in the meaning between "to be equally divided among them" and "share and share alike."' This indicates a refusal by the court in the Wilcox case to recognize the subtle distinction to which recognition was given in the former decisions."
I do not believe it would be possible for me, as the author of the opinion rendered in the Wilcox case, to make plainer my interpretation of the words "share and share alike." To say that "the will contained no words providing for a division operative in the future and justifying an interpretation of that kind" is simply to overlook the fact that the will was to take effect in the future, that is, at the time of the death of the testator.
In his criticism, the author of the prevailing opinion rendered in the present case, overlooks the difference, in that respect, between a donation mortis causa and a donation inter vivos — as he does in the *Page 698 example which he gives, in this prevailing opinion, of a mother saying to her three children `I give to all of you this pie, share and share alike.'" In that illustration of course the sharing and sharing alike was to be done at the moment of the giving of the pie. But if the gift had been a donation mortis causa of the residue of the mother's estate, the phrase "share and share alike" would have had reference to the future, that is, the date of her death.
I find it particularly difficult to explain more plainly the finding in the Succession of Wilcox, — of which the following complaint is made on the 13th page of the prevailing opinion [28 So.2d 6], — which complaint I repeat — thus:
"Later in the opinion, however, [in the Succession of Wilcox] in reference to the Parkinson case, it was said that, `Surely, there is no difference in the meaning between "to be equally divided among them" and "share and share alike"'. This indicates a refusal by the court in the Wilcox case to recognize the subtle distinction to which recognition was given in the former decisions."
There was no recognition given in the former decisions of any "subtle distinction" — or of any distinction at all — between the meaning of the phrase "to be equally divided among them" and the phrase "share and share alike". That is why, in the Succession of Wilcox, the court did not observe that any such subtle distinction was recognized in the former decisions *Page 699 of this court, between the phrase "to be equally divided among them" and the phrase "share and share alike".
In the Succession of Maus, 177 La. 822, 149 So. 466, decided in 1933, the residuary bequest which was held to convey a conjoint legacy, notwithstanding the phrase "share and share alike," was as follows:
"After all debts are paid, I will and bequeath the balance of my estate, if any, to my Dear Mother, and my Dear Sisters, Mrs. Gus F. Heausler, Mrs. L. J. Franz and Mrs. George McIntyre, share and share alike."
One of the colegatees, Mrs. George McIntyre, died more than a year before the testator died. The heirs of the testator claimed that the phrase "share and share alike" constituted an assignment of the fractional part of the legacy to each of the colegatees, that therefore the legacy was not a conjoint legacy, and hence that they, the heirs of the testator, inherited the one-fourth share which would have gone to Mrs. McIntyre if she had survived the testator. But the court, after quoting articles 1706, 1707, and 1708 of the Civil Code, the Succession of Wilcox, 165 La. 803, 116 So. 192, and Mackie v. Story, 93 U.S. 589, 23 L.Ed. 986, and the Succession of Villa,132 La. 714, 61 So. 765, held that the legacy was a conjoint legacy, notwithstanding the phrase "share and share alike." The court therefore affirmed the judgment of the civil district court dismissing the suit of the heirs of the testator. The late *Page 700 Justice Land, in delivering the opinion for the court, said:
"It is immaterial, in our opinion, that the residuum may be divisible between the universal legatees. The words `share and share alike' and `to be equally divided between them,' when added to a legacy, are terms of similar import, and only express what the law would imply without them. They do not alter the character of the legacy. Succession of Wilcox, 165 La. 803,116 So. 192; Mackie v. Story, 93 U.S. 589, 23 L.Ed 986."
The author of the prevailing opinion in the present case calls attention to the fact that the last two sentences in the paragraph which I have quoted from the opinion written by the late Justice Land, in the Succession of Maus, are taken almost verbatim from the opinion rendered by Justice Bradley in Mackie v. Story, 93 U.S. 589, 23 L.Ed. 986. What Justice Bradley said was this: "Hence the words `to be divided equally between them' added to such a legacy only express what the law would imply without them. They do not alter the character of the legacy; they are only descriptive of it." The author of the prevailing opinion in this case (p. 15 [28 So.2d 7]), therefore, charges the seven justices who signed the opinion in the Succession of Maus with injecting some common-law principles into the law of Louisiana, contrary to the principles announced in the Civil Code, — thus:
"What this court did in the Maus case, therefore, was to inject into Louisiana *Page 701 testamentary law some common law principles that are contrary to those enunciated by our Civil Code."
With due respect I think that that is a mistake. The principle which governed the decision in the Succession of Maus, as disclosed by the quotation from the opinion rendered in that case, was not contrary to article 1707 or to any other article of the Civil Code. That is shown by the citations on which the decision was rested, namely, Succession of Wilcox, 165 La. 803,116 So. 192, and Mackie v. Story, 93 U.S. 589, 23 L.Ed. 986. In neither of those decisions did the court "inject into Louisiana testamentary law some common law principles that are contrary to those enunciated by our Civil Code."
The decision rendered in the Succession of Wilcox, and affirmed in the Succession of Maus, was affirmed again as late as 1940, in the Succession of Blossom, 194 La. 635, 194 So. 572, 576. In that case the testatrix bequeathed to an adopted daughter the usufruct of the property of the testatrix and declared that at the death of the adopted daughter the property should be "equally divided" between two legatees, namely, Evelyn B. Kern and George D. Marshall. George D. Marshall died before the testatrix died. The adopted daughter, as the heir of the testatrix, sued to annul the bequest on the ground that it was a prohibited substitution, and, in the alternative, the adopted daughter claimed that she was entitled to that portion of the *Page 702 estate that was bequeathed to George D. Marshall, the legatee who had died. This alternative demand was founded upon the argument that the legacy to the two legatees was not a conjoint legacy. The court held that giving the usufruct of the property to one legatee, and at her death dividing the property between the two other legatees, was not a prohibited substitution; and, in response to the alternative claim, that the legacy to the two legatees was not a conjoint legacy, the court said:
"Under the ruling in Succession of Wilcox, 165 La. 803,116 So. 192, and Succession of Maus, 177 La. 822, 149 So. 466, Evelyn B. Kern and George D. Marshall were conjoint legatees, and, as George D. Marshall died prior to the date of the death of the testatrix the bequest to him lapsed, under Article 1697 of the Civil Code, and goes to Miss Kern, the other legatee."
The ruling in the Succession of Blossom therefore was that the bequest, "I wish this property to be equally divided between" the two named Legatees, did not convert the conjoint legacy into a distributive legacy. And in that connection the court likened the expression "to be equally divided" to the phrase "share and share alike," which the court had passed upon in the Succession of Wilcox and in the Succession of Maus.
In the prevailing opinion in the present case (p. 15 [28 So.2d 7]) it is said:
"In Succession of Blossom, 194 La. 635, 194 So. 572, 573, the court, without comment, *Page 703 held that the will under consideration contained a conjoint legacy, citing as authority for the holding the Wilcox and Maus decisions." [Italics are mine.]
What further comment was necessary, I ask with due respect, than to cite as authority for the holding the Wilcox and Maus decisions. They were not only good authority but expressed the unanimous opinion of this court until they were overruled in the present case. The two senior members of the group of justices who subscribe to the prevailing opinion in the present case subscribed also to the unanimous opinion rendered in the Succession of Blossom, where the court held that the will under consideration contained a conjoint legacy, citing as authority for the holding the Wilcox case and the Maus case. None of the group of justices who have subscribed to the prevailing opinion in the present case was a member of this court when the decisions on this subject were rendered previous to the unanimous opinion rendered in the Succession of Blossom.
It is said in the prevailing opinion in the present case (p. 16 [28 So.2d 7]) that the last case in our jurisprudence on the subject of testamentary accretion is the Succession of Lacoume, 1944, 205 La. 511, 17 So.2d 726, 727; from which the clause which was in contest there is quoted, — thus:
"One-third of my estate after paying the bequest to my sister to the children of my *Page 704 deceased son, Charles Lacoume, Jr., to-wit: Louis Lacoume and Hortense Lacoume, wife of Henry Arnold."
Before the testator died, one of the legatees, Louis Lacoume, died, leaving three children. The colegatee, Mrs. Hortense Lacoume Arnold, contended that the bequest to her and her brother, Louis Lacoume, conveyed a conjoint legacy, and hence that she was entitled by accretion to the portion bequeathed to Louis Lacoume. The contest was between Mrs. Hortense Lacoume Arnold and the three children of the deceased colegatee, Louis Lacoume. The court found from certain facts in the will itself and in a codicil to the will that the testatrix had intended to divide her estate by "roots," and hence that the three children of the deceased legatee, Louis Lacoume, were entitled to the one-sixth of the legacy bequeathed to him. Hence the author of the opinion said that, in view of that conclusion, the law of conjoint legacies and the doctrine of accretion were not applicable. If the decision in the present case is to be governed by the ruling in the Succession of Lacoume, as I understand it, only one of the plaintiffs in this suit, namely, Albert E. Lambert, is entitled to the share which was bequeathed to his father, Albert Lambert, in the residuary legacy, because Albert E. Lambert is the only direct descendant heir of his father, Albert Lambert. In the decree rendered in the present case, the exceptions of no cause and no *Page 705 right of action are overruled and the case is remanded to the civil district court for further proceedings according to law and consistent with the views expressed in the prevailing opinion. If by that decree the court intends that this case shall be governed by the decision in the Succession of Lacoume, as I understand it, only one of the plaintiffs, Albert E. Lambert, will have a right of action. I do not believe that a majority of the members of the court intend such a result.
There appears in Volume XIX. No. 2, of the Tulane Law Review, for December 1944, pp. 278-289, an interesting article on the Right of Accretion in Conjoint Legacies. The author cites with approval the decision in Parkinson v. McDonough, 4 Mart., N.S., 246; Lebeau v. Trudeau, 10 La.Ann. 164; Succession of Wilcox,165 La. 803, 116 So. 192; Mackie v. Story, 93 U.S. 589,23 L.Ed. 986; and the French commentators on the subject; and he explains away the ruling in the Succession of Schonekas, 155 La. 401,99 So. 345. He declares that the decision in Lebeau v. Trudeau definitely sets out the test for determining whether a legacy given to several persons is conjoint. After explaining that, if the words used by the testator merely direct how the legatees are to participate, the legacy is conjoint, the author proceeds thus:
"On the other hand, if the testator assigns to each particular legatee his portion in the legacy, calling each legatee to *Page 706 his particular part, then the legacy is one of distinct and separate parts in which the right of accretion does not take place [citing Succession of Wilcox]. However, this assignment must be clear and distinct. Thus, the stipulation, `I leave to John, Mary and Paul the disposable portion of my estate to share and share alike,' has been held to refer only to the mode of execution of the will. Such a legacy is therefore a conjoint legacy, in which the other legatees benefit by accretion in case of the death or refusal to accept on the part of one of the legatees.
"This line of thinking is more or less similar to the interpretation given by the French commentators to the second paragraph of Article 1044 of the French Civil Code, [citing the French commentators] to the effect that `a legacy shall be considered as having been made jointly when it is made by one and the same provision and when the testator has not specified the share of the thing bequeathed which each legatee is to take.'"
* * * * * * "The Supreme Court of the United States agreed with this doctrine as early as 1876, when it decided a case coming up from Louisiana [Mackie v. Story]. In that case, the testator made a will, the third paragraph of which contained the provision, `I will and bequeath to Henry C. Story and Benjamin S. Story all properties I die possessed of, to be divided equally between them.'" [Italics are mine.] *Page 707
In the Succession of Fertel, 208 La. 614, 23 So.2d 234, 238, decided less than a year ago, it was said:
"When a will is executed, a reasonable and natural presumption is that the testator intends to dispose of his entire estate. There is no presumption that he intends to die intestate as to any part of his estate when the language he uses will clearly carry the whole."
In the paragraph which we have quoted from Mackie v. Story, is the following excerpt:
"Where the whole thing bequeathed is given to two persons, if one of them fails to receive the benefit of the disposition, either because he dies before the testator, or is incapable to take it, or refuses to take it, or because as to him it is revoked, the whole goes to the other legatee by accretion; for the whole was given to both, and it is presumed to be the willof the testator that he shall not die intestate as to any part,but that the whole shall pass by his will; and this, notwithstanding it may be divisible between the legatees, if received by both." [Italics are mine.]
The Legislature has held nine regular sessions and fifteen extraordinary sessions during the eighteen years since the decision was rendered in the Succession of Wilcox, and has held six regular sessions and ten extraordinary sessions during the thirteen years since the decision was rendered in the Succession of Maus. In both of those cases the court construed the second *Page 708 paragraph of article 1707 of the Civil Code, which provides that a legacy which is given by one and the same testamentary disposition shall be considered a conjoint legacy unless the testator has "assigned the part of such [each] colegatee in the thing bequeathed." And in each case the court held that the trite phrase "share and share alike" was not an assignment of the part bequeathed to each colegatee, in the meaning of article 1707 of the Civil Code.
If that interpretation, which we gave to such an important article as article 1707 of the Civil Code, in the Succession of Wilcox and in the Succession of Maus, had not had the approval generally of the members of the profession of law, someone would have brought the matter to the attention of the Legislature and the error — if it had been considered an error — would have been corrected long ago. The law schools in Louisiana — and their law journals — would not have neglected their duty in that respect; nor would the Louisiana State Law Institute, or the Committee on Jurisprudence and Law Reform of the Louisiana State Bar Association, or the like Committee of the New Orleans Bar Association, have overlooked the matter, if the court's interpretation of this article of the Civil Code — of such general importance — had been considered a wrong interpretation.
For the reasons given I respectfully dissent from the decision rendered in this case. *Page 709