A fundamental rule of statutory construction, which is overlooked in the prevailing opinion in this case, is that, when the highest court of a state places its construction upon a statute of the state the construction becomes a part of the statute; so that, if the statute, after being interpreted by the highest court, is re-enacted without any material change, the presumption is that the Legislature intends that the same interpretation shall be given to the statute as re-enacted. La Selle Brother v. Whitfield, 12 La.Ann. 81; James v. Thompson, 12 La.Ann. 174; King v. Lastrapes, 13 La.Ann. 582; State v. Brewer, 22 La.Ann. 273; Crescent Bed Co. v. City of New Orleans,111 La. 124, 35 So. 484; Lehman v. Lehman, 130 La. 960,58 So. 829; Frank v. Waters, 162 La. 255, 110 So. 413.
Sutherland on Statutory Construction, p. 336, sec. 256, states the rule thus:
"In the interpretation of re-enacted statutes the court will follow the construction which they received when previously in force. The legislature will be presumed to know the effect which such statutes originally had, and by re-enactment to intend that they should again have the same effect." Citing among other cases State v. Brewer, 22 La.Ann. 273, 274.
The rule is stated in Black's Law of Judicial Precedents, p. 235, thus: *Page 710
"A statute literally or substantially re-enacting a prior statute after its words have received a judicial interpretation must be regarded as adopted with knowledge of such construction and with the intention that it should thereafter be interpreted in the same way. Therefore the prior decisions, in which the construction of the statute was settled, are binding precedents for its interpretation after the re-enactment."
The rule is stated in Crawford on Statutory Construction, p. 437, sec. 233, thus:
"Generally, where a statute, or a provision thereof, has been re-enacted by the legislature in the same or substantially the same language, the law-makers are presumed to have adopted the construction placed upon such statute or provision by the court of last resort in the state, unless the statute as reenacted clearly indicates a different intention."
From the opinion in James v. Thompson, 12 La.Ann. 174, loc. cit. 175, I quote the following:
"The reenactment of the statute subsequent to the decision of the case of Lay v. Boyce, 3 La.Ann. 622, without any change in its provisions, affords, we think, a sufficient indication of the concurrence of the legislative will in the construction thus given to it."
From the opinion in King v. Lastrapes, 13 La.Ann. 582, loc. cit. 583, I quote the following paragraph:
"The interpretation of this section of the Act of 1842, by the Supreme Court, was *Page 711 known to the lawyers in the Legislature of 1855, who were charged with the general revision of the statutes; and they could easily have prevented, in the future, this interpretation by the insertion of a few words. As they did not do so, they consequently adopted and reenacted the Act of 1842, as interpreted by the published decisions of the Supreme Court."
From the opinion in State v. Brewer, 22 La.Ann. 273, loc. cit. 275, I quote the following paragraph:
"These decisions and opinions were matters of record and publication, and formed an important chapter in the jurisprudence of the State when the Legislature of 1870 adopted the revisory laws which we are now considering. We must presume that the Legislature had them in view when they made use of the repealing clause which had been so fully interpreted; and even if we doubt the correctness of the interpretation, we can hardly imagine a case in which the interests of society more loudly demand an obedience to the rule stare decisis."
In the opinion rendered in Crescent Bed Co. v. City of New Orleans, 111 La. 124, 35 So. 484, the rule is stated thus:
"The rule is that when an act or part thereof that has received a judicial interpretation is re-enacted in the same terms, that construction must be considered to have the sanction of the legislative body, unless the contrary appears." *Page 712
I quote now the second paragraph of the syllabus of the decision in Lehman v. Lehman, 130 La. 960, 58 So. 829, thus:
"Where a statute or an article of the Code has been reenacted without change, the interpretation which had been placed upon it by the Supreme Court must be considered as having been adopted along with it."
And, from Frank v. Waters, 162 La. 255, 110 So. 413, I quote the second paragraph of the syllabus, thus:
"Where statute, previously interpreted by Supreme Court, has been re-enacted, without material change, presumption is that Legislature intended same interpretation to be placed on re-enacted act."
Now, let us see how unavoidable is the application of this rule of statutory construction to article 1707 of the Civil Code, which was article 1700 in the Code of 1825, and was article 195 in the Code (or Digest) of 1808. The article declares that a legacy shall be considered as being made conjointly when it is made to two or more legatees by one and the same testamentary disposition without the testator's having assigned the part bequeathed to each colegatee in the thing bequeathed. Therefore, when a legacy is bequeathed to two or more legatees by one and the same testamentary disposition, as in this case, the only question is whether the words used in the testamentary disposition, such as "share and share alike" or "to be equally divided", do or do not constitute an assignment of the fractional part *Page 713 of the legacy bequeathed to each colegatee. That question, of course, depends upon the interpretation of the article of the Civil Code.
In Parkinson v. McDonough, 4 Mart., N.S., 246, the court interpreted article 195 of the Code (or Digest) of 1808, in a case arising previous to the adoption of the Code of 1825, and held that the phrase "to be equally divided among them," in a legacy under an universal title, in favor of four legatees, did not constitute an assignment of the fractional part bequeathed to each colegatee.
Meanwhile the Legislature had adopted the Code of 1825, in which article 195 of the Code of 1808 was retained, word for word, as article 1700.
Thereafter, in 1855, in the case of Lebeau v. Trudeau, 10 La.Ann. 164, this court interpreted the same article, as re-enacted, and held that a testamentary disposition declaring that the testator's property "shall be divided in equal proportions" among eight legatees, named in the bequest, did not constitute an assignment of the fractional part bequeathed to each colegatee. It was in that case that the court discussed and construed not only article 1700 of the Code of 1825 but also articles 1699 and 1702, the provisions of which — as pointed out in the prevailing opinion in the present case — were not in the Code Napoleon.
Therefore, when the Legislature adopted the Revised Civil Code of 1870, and retained *Page 714 article 1700 of the Code of 1825 as article 1707 of the Revised Civil Code without any change whatever, the Legislature, according to the established rule of statutory construction, which I have quoted, re-enacted the article of the Civil Code with the interpretation which this court had given to it in the case of Lebeau v. Trudeau in 1855.
Six years afterwards, that is, in 1876, the Supreme Court of the United States, in the Louisiana case of Mackie v. Story,93 U.S. 589, 23 L.Ed. 986, construed article 1707 of the Revised Civil Code exactly as this court had construed article 1700 of the Code of 1825 in the case of Lebeau v. Trudeau, and held that the phrase "to be divided equally between them", in a testamentary disposition in favor of two residuary legatees, did not constitute an assignment of the fractional part of the legacy bequeathed to each colegatee. In deciding the case the Supreme Court of the United States quoted extensively from the opinion which had been rendered in Lebeau v. Trudeau, interpreting article 1700 of the Code of 1825.
Five years later, that is, in 1881, in the Succession of Dupuy, 33 La.Ann. 277, this court, again construing article 1707 of the Revised Civil Code, held that a residuary legacy, bequeathed to five legatees, was a conjoint legacy in spite of the phrase in the bequest "by equal portions." In giving this interpretation to article 1707 the court cited Parkinson v. McDonough, 4 Mart., N.S., *Page 715 246, interpreting article 195 of the Code of 1808, and Lebeau v. Trudeau, 10 La.Ann. 164, interpreting article 1700 of the Code of 1825.
Thereafter, in 1911, in the case of Waterman v. Canal-Louisiana Bank Trust Co., 186 F. 71, the United States Circuit Court of Appeals for the Fifth Circuit, in another Louisiana case, gave the same interpretation to article 1707 of the Revised Civil Code that had been given to article 195 of the Code of 1808 in Parkinson v. McDonough, 4 Mart., N.S., 246, and that had been given to article 1700 of the Code of 1825 in Lebeau v. Trudeau, 10 La.Ann. 164; and the Federal Court then cited both of those cases to support its interpretation of article 1707 of the Revised Civil Code.
In 1913, a similar interpretation was given to article 1707 of the Revised Civil Code in the Succession of Villa, 132 La. 714,61 So. 765.
In 1924, in the Succession of Schonekas, 155 La. 401,99 So. 345, the three judges forming the division of the court by whom alone the case was considered gave what two of them admitted afterwards was the wrong interpretation of article 1707 of the Civil Code, and what the other one of them admitted afterwards was not applicable to a residuary legacy.
Four years afterwards, in the Succession of Wilcox,165 La. 803, 116 So. 192, 194, two of the three justices who had decided the case of Succession of Schonekas acknowledged that they had given the wrong *Page 716 interpretation to article 1707, and they then concurred in the ruling that the phrase "share and share alike" in a residuary bequest to two or more legatees was not an assignment of the part of the legacy bequeathed to each colegatee. And, in 1933, in the Succession of Maus, 177 La. 822, 149 So. 466, 467, the same two justices acknowledged again that the phrase "share and share alike" in a bequest to two or more colegatees was not an assignment of the fractional part of the legacy bequeathed to each colegatee. In this latter decision the third member of that division of the court that had decided the case of Succession of Schonekas, being in fact the member who had written the opinion in that case, handed down a concurring opinion declaring that the ruling in the Succession of Schonekas was not applicable to a residuary legacy. The legacy in the present case, in which appears the phrase "share and share alike", is a residuary legacy.
And so, in 1928, in the Succession of Wilcox, the court again definitely construed article 1707 of the Civil Code to mean that the phrase "share and share alike" was not an assignment of the fractional part bequeathed to each colegatee in a residuary legacy to five legatees.
And again, in the Succession of Maus, in 1933, when the author of the opinion rendered in the Succession of Schonekas, namely, Justice Overton, was yet a member of this court, and with all of the seven justices participating, the court decided unanimously *Page 717 that a residuary legacy bequeathed to four legatees was, according to article 1707 of the Civil Code, a conjoint legacy, in spite of the phrase "share and share alike."
As late as 1940, in the Succession of Blossom, 194 La. 635,194 So. 572, 573, it was decided unanimously, by the court composed of the present Chief Justice, and Justices Land, Rogers, Odom, Higgins, Fournet and Ponder, that, according to article 1707 of the Revised Civil Code, and according to the ruling in the Succession of Wilcox and in the Succession of Maus, the residuary legacy in question was a conjoint legacy, in spite of the phrase "to be equally divided between" the two named legatees. In that case the interpretation of article 1707 of the Revised Civil Code was stated in only these few words:
"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 death of the testatrix, the bequest to him lapsed, under Article 1697 of the Civil Code, and goes to Miss Kern, the other legatee."
That quotation, taken from the opinion written by Justice Odom in the Succession of Blossom, discloses that, as late as the year 1940, four members of this court as it is now constituted expressed their approval of the decision rendered in the Succession of Wilcox in 1928, and repeated in the Succession *Page 718 of Maus in 1933, that the residuary legacy in each of those cases was a conjoint legacy in spite of the phrase "share and share alike." The legacy in contest in this case, Succession of Lambert, in which appears the phrase "share and share alike," also is a residuary legacy.
With due respect I doubt that there was ever a decision which so plainly ignored a rule of statutory construction as the decision in this case ignores the rule that when a statute has been construed by the highest court of the State and thereafter has been re-enacted without any change in the wording of the statute the presumption is that the Legislature intends that the statute as re-enacted shall be interpreted the same as it was interpreted by the court before it was re-enacted.
If the defendant in this case, Robert Vincent Lambert, is to be denied the benefit of that rule of statutory construction, the court ought to overrule the several decisions in which the litigants have been allowed the benefit of the rule, and which I have quoted — namely, LaSelle Brother v. Whitfield, 12 La.Ann. 81; James v. Thompson, 12 La.Ann. 174; King v. Lastrapes, 13 La.Ann. 582; State v. Brewer, 22 La.Ann. 273; Crescent Bed Co. v. City of New Orleans, 111 La. 124,35 So. 484; Lehman v. Lehman, 130 La. 960, 58 So. 829; Frank v. Waters,162 La. 255, 110 So. 413. To maintain that the winners of those cases were entitled to the benefit of this rule of statutory construction, and, at the same *Page 719 time and without giving any reason therefor, to deny the defendant in this case the benefit of the rule, is to deny him the equal protection of the law.
No attempt is made in the prevailing opinion in this case to justify denying the defendant in this case the benefit of the rule of statutory construction which was allowed to the winners of the several cases which I have cited. Why should the court stop at overruling the decision in the Succession of Wilcox and in the Succession of Maus — and the many decisions which preceded them — and the one which followed and affirmed them? Why not expressly overrule also the decisions in which this rule of statutory construction was applied, or give some reason for refusing to apply the rule to this case? It cannot be that, in the estimation of the five justices who subscribe to the prevailing opinion in this case, the court's original interpretation of article 195 of the Code of 1808, which became article 1700 of the Code of 1825, and became article 1707 of the Revised Civil Code of 1870, was so obviously wrong, as expressed in those decisions, that the court should overrule them, even at this late date, instead of leaving it to the Legislature to change the law if it needs to be changed. The best proof that those old decisions, interpreting originally and consistently this article which has remained in the Civil Code unchanged for 138 years, were not obviously wrong — or wrong at all for that matter — is that they represent the deliberate *Page 720 judgment of many jurists of recognized ability, whose names are a part of the judicial history of this state. Their interpretation of article 195 of the Code of 1808 — article 1700 of the Code of 1825 — could not have stood as it has stood the test of approval of both the legislative and the judicial department of the government for so many years if that interpretation was so unsound that it should be put aside now by the court itself, or by any authority other than an act of the Legislature. I refer, of course, to Justices George Mathews, Francois-Xavier Martin, and Alexander Porter, who composed the court which decided unanimously the case of Parkinson v. McDonough, 4 Mart., N.S., 246, in 1826. I refer to Chief Justice Slidell, and Justices Ogden and Spofford, who decided the case of Lebeau v. Trudeau, 10 La.Ann. 164, 91 years ago, in the light of the dissenting opinion then written by Justice Buchanan and concurred in by Justice Voorhies.
I refer also to Justice Bradley, of the Supreme Court of the United States, and the exhaustive opinion which he wrote for the court, in Mackie v. Story, 93 U.S. 589, 23 L.Ed. 986, in 1876. Justice Bradley did not merely adopt the decision rendered by this court in Parkinson v. McDonough or the one in Lebeau v. Trudeau, but dealt thoroughly with the subject, and especially with the doctrine of joint tenancy and tenancy in common, as recognized in the common law, and as distinguished from the doctrine of conjoint legacy, recognized in the civil law of Louisiana. And I refer to *Page 721 Justice Bradley's discussion of the opinions of the French commentators on the subject, and to his extensive quotations from the opinion which this court had given in Lebeau v. Trudeau. And I refer to the 8 other men who then made up the Supreme Court of the United States, and who concurred with Justice Bradley in his interpretation of article 1707 of the Civil Code, namely, Chief Justice Waite and Justices Clifford, Swayne, Miller, Davis, Field, Strong and Hunt.
I refer also to Justices Poche, Todd, Levy and Fenner, who (with Chief Justice Bermudez not taking part) decided in the Succession of Dupuy, 33 La.Ann. 277, in 1881, that, in a residuary legacy in favor of five legatees, the declaration that the legacy was bequeathed to them "by equal portions" was not an assignment of the part given to each one of the five colegatees.
I refer also to the three judges of the United States Circuit Court of Appeals for the Fifth Circuit, who enjoyed excellent reputations in Louisiana for their ability as jurists, namely, Judge Don A. Pardee, Judge A. P. McCormick and Judge David D. Shelby, who constituted the court that decided the case of Waterman v. Canal-Louisiana Bank Trust Co., 186 F. 71, in 1911.
I refer also to Justice Monroe, afterwards Chief Justice, and Justices W. B. Sommerville and Alfred D. Land, who decided *Page 722 the case of Succession of Villa, 132 La. 714, 61 So. 765, in 1913.
I refer to the late Justices Overton, St. Paul and Thompson, who decided, in the Succession of Schonekas, 155 La. 401,99 So. 345, 346, in 1924, that the phrase "share and share alike" was an assignment of the fractional part of the legacy bequeathed to each colegatee; but I refer particularly to the fact that, four years later, in the Succession of Wilcox, and again, five years later, in the Succession of Maus, Justices St. Paul and Thompson acknowledged that they had erred in subscribing to the decision in the Succession of Schonekas, and they then held that a residuary legacy bequeathed to two or more colegatees by one and the same testamentary disposition was a conjoint legacy, in spite of the phrase "share and share alike". And I refer more particularly to the fact that the late Justice Overton in the Succession of Maus, in 1933, delivered a concurring opinion maintaining that a residuary legacy bequeathed to two or more legatees by one and the same testamentary disposition was a conjoint legacy, in spite of the phrase "share and share alike."
I refer to the fact that, notwithstanding Justices Overton, Rogers and Land favored granting a rehearing in the case of the Succession of Wilcox, they indicated, five years afterwards, that if the rehearing had been granted they would have voted to reinstate the original judgment of this court rendered in the case; because, in the Succession *Page 723 of Maus, in 1933, these three justices concurred with Justices St. Paul, Brunot and Odom in the unanimous opinion that the residuary legacy bequeathed by William P. Maus to his mother and four sisters by one and the same testamentary disposition was a conjoint legacy, in spite of the phrase "share and share alike."
And I refer now to the fact that a majority of the members of this court, as presently constituted, namely, the Chief Justice and Justices Rogers, Fournet and Ponder, concurred with Justices Land, Odom and Higgins, in the unanimous opinion written by Justice Odom in the Succession of Blossom, 194 La. 635,194 So. 572, 573, in 1940, affirming, in express terms, the decision rendered in the Succession of Wilcox and repeated in the Succession of Maus, that a residuary legacy bequeathed to two or more colegatees by one and the same testamentary disposition was a conjoint legacy notwithstanding the phrase "share and share alike."
In order to avoid any and all doubt that the decision rendered in the Succession of Blossom, declaring that the residuary legacy bequeathed to two legatees was a conjoint legacy, was not obiter dictum, but was an issue which the court was obliged to decide, I restate now the three alternative issues that were presented for decision in that case. The testatrix, Mrs. Emma Blossom Baker, left a will, reading as follows: *Page 724
"New Orleans, La. Feb. 18 — 1930. I give and bequeath to Annie Baker, my adopted daughter, now at Elwyn, Pa., the usufruct of my property — and at her death I wish this property to beequally divided between Evelyn B. Kern of Toledo Ohio — and George D. Marshall of Shreveport, Louisiana. This is wholly written and signed and dated by me." [The italics are mine.]
George D. Marshall died before the death of the testatrix. Evelyn B. Kern, the other legatee, survived the testatrix. The will was probated on her application; and the Hibernia National Bank in New Orleans was appointed dative testamentary executor. The adopted daughter, Annie Baker, brought suit against Evelyn B. Kern, the surviving legatee, and against the Hibernia National Bank as executor. The adopted daughter, suing as the heir of the testatrix, claimed, first, that the will contained a prohibited substitution and was therefore null, and that she, the adopted daughter, as heir of the testatrix, inherited the whole estate; second, in the alternative, that she was a forced heir, and if the will should be declared valid the legacy to Evelyn B. Kern and George D. Marshall exceeded the disposable portion and should be reduced to two-thirds of the estate; and, third, again in the alternative, that "she [the adopted daughter] was entitled to that portion of the estate which was bequeathed to George D. Marshall, who died prior to the date of the death *Page 725 of the deceased [testatrix]." The court decided the three alternative demands in their order, holding, first, that the will did not contain a prohibited substitution and was therefore a valid will; second, that the plaintiff, Annie Baker, being the legally adopted daughter, was a forced heir and as such was entitled to one-third of the estate; and, third, that the plaintiff's third alternative demand, that as the heir of the testatrix she was entitled to the half of the estate which was bequeathed to George D. Marshall, was not well founded, because the legacy bequeathed to him and Evelyn B. Kern was a conjoint legacy. Having decided that the will was valid but that the adopted daughter was entitled to a third of the estate as the forced heir of the testatrix, it was necessary for the court to decide also her alternative demand, that she was entitled to one-half of the estate on the theory that the legacy in favor of Evelyn B. Kern and George D. Marshall was not a conjoint legacy. The facts and issues are well stated in the report of the case. I have examined also, however, the original record of the case in the archives of this court and I find that the attorney for the adopted daughter, in his printed brief, made an extensive argument quoting from the decision in the Succession of Schonekas, 155 La. 401, 99 So. 345, that the legacy bequeathed to Evelyn B. Kern and George D. Marshall was not a conjoint legacy. I find also that the attorney for the two defendants, Evelyn B. Kern and the Hibernia National *Page 726 Bank, as executor, rested his argument entirely upon the two cases which he cited in his brief, namely, Succession of Wilcox,165 La. 803, 116 So. 192, and Succession of Maus, 177 La. 822,149 So. 466. In disposing of that issue in the case, Justice Odom, for the court, stated simply this:
"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."
It would be difficult if not impossible to find a case to which the fundamental rule of statutory construction to which I have referred would be more plainly applicable than it is to this case, where the article of the Civil Code, as first enacted in the Code of 1808, was given a definite interpretation by this court, and was re-enacted in 1825, without any change whatsoever, and was again given the same interpretation by this court, in Lebeau v. Trudeau in 1855, and was re-enacted again without any change in 1870, and again was given the same interpretation by this court, and by the Supreme Court of the United States in a Louisiana case, and by the United States Circuit Court of Appeals for the Fifth Circuit in another Louisiana case, and again and again has been given the same interpretation by this court, down to *Page 727 and including the year 1940 — when it was so interpreted again unanimously and by four members of this court even as now constituted — in the Succession of Blossom, 194 La. 635,194 So. 572.
This fundamental rule of statutory construction which I have referred to shows how wrong it is for the highest court of a state to overrule a long and consistent line of its own decisions on a point of law after they have become recognized as a part of the law of the state. The doctrine jurisprudence constante, in Louisiana, is much more of a preventive of injustice than the doctrine stare decisis is in the other states. If the prevailing opinion in this case is right, imagine how many times the lawyers of Louisiana must have given the wrong advice to their clients during the past 18 years, on their faith in the decision in the Succession of Wilcox and in the Succession of Maus and the Succession of Blossom, as to the meaning of article 1707 of the Civil Code. Imagine how consistently the teachers in the law schools in Louisiana must have given the wrong instructions to the students, on the effect of adding to a residuary bequest made to two or more legatees in one and the same testamentary disposition the apparently harmless phrase, "share and share alike," or "to be divided equally between them," or "among them."
If the decision in the present case is right, imagine how many times the heirs at law of a testator must have been deprived *Page 728 of their inheritance unjustly by reason of their having faith — or their lawyers' having faith — in the decision rendered by this court in the Succession of Blossom, in 1940, and in the decision rendered in the Succession of Maus, in 1933, and in the decision rendered in the Succession of Wilcox, in 1928, and in the long line of decisions, going back to Lebeau v. Trudeau, in 1855, and Parkinson v. McDonough, in 1826.
The best precedent for a decision of this case is the decision in Lebeau v. Trudeau, 10 La.Ann. 164, rendered 91 years ago. That is the case in which the prevailing opinion was written by Chief Justice Slidell and was concurred in by Justices Ogden and Spofford, and in which a dissenting opinion, in line with the prevailing opinion in the present case, was written by Justice Buchanan and was concurred in by Justice Voorhies. The doctrine of the decision rendered in that case is stated completely in the syllabus, thus:
"The will of George Lebeau contained the following clause:
"`I, the undersigned, George Lebeau, in the enjoyment of my intellectual faculties, wishing to put my affairs in proper order, and to make my last will, and to make known the persons to whom I bequeath my property:
"`After my debts [are] paid, my property shall be divided in equal proportions, among the [8] persons hereinafter named, *Page 729 that is to say, L. L., P. B., J. D., E. B., J. B., E. W., L. G., L. H. T.
"`I have hereinbefore mentioned the names of the [8] persons to whom I bequeath all my property, these are my last testamentary dispositions. I will that they shall be respected.'
"Held: The legacy is made without the testator's having assigned the part of each co-legatee. `The assignment of the parts of each co-legatee,' (C.C. 1700,) contemplates an express specification and assignment of the respective portions of the legatees, calling each to his particular portion. There is not that specific and distinct assignment of the parts necessary to constitute a distinct legacy to each, of distinct portions of the estate. The testator has called the legatees conjointly to partake equally in the totality of the estate, and mentioned the equality of their portions, for the purpose of regulating the distribution of the totality. The right of accretion takes place, under these clauses."
In that case the court did not overlook the fact that neither article 1699 nor article 1702 of the Code of 1825 had a counterpart in the Code Napoleon. That fact was brought to the attention of the court by Justice Buchanan's dissenting opinion just as forcibly as it is brought to the attention of the court in the prevailing opinion in the present case. On that subject Justice Buchanan in his dissenting opinion stated:
"It should be observed also, in reference to the construction of the Articles 1700 and *Page 730 1701 [now 1707 and 1708], that our Code contains two articles, which are not found in the Code Napoleon, and which immediately precede and follow those two articles.
"Article 1699 declares, that the right of accretion relative to testamentary dispositions, shall no longer subsist, except in the cases provided in the two following articles:
"Article 1702 says:
"`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, or because the heir or the legatee has not been able, or has not been willing to accept it, shall devolve upon the heirs at law.'"
"Had these articles existed in the Code Napoleon, we are not permitted to suppose that Marcade would have maintained, as we find him doing, in opposition to Duranton and others, that the right of accretion of legacies was not limited to the cases mentioned in Articles 1044 and 1045 of the French Code.
"I think the judgment appealed from should be reversed."
What the prevailing opinion in the present case does, therefore, is to substitute for the prevailing opinion which was rendered in Lebeau v. Trudeau, 91 years ago, the dissenting opinion which was considered thoroughly and rejected finally on that occasion, and which has never been referred to with approval since it was rejected *Page 731 by the majority of the members of this court. The prevailing opinion rendered in Lebeau v. Trudeau has never been overruled or referred to with disapproval during the 91 years of its existence as a part of the law of Louisiana on this subject.
In the Succession of Burnside, 35 La.Ann. 708, in 1883, it was observed that a universal legatee, a residuary legatee, and an instituted heir, were all legatees of the same general class, as distinguished from legatees under a universal title and legatees under a particular title; and it was held in that case that a universal legatee, or so-called residuary legatee, was entitled to all of the property owned by the testator at the time of his death, including property acquired after the date of the will as well as that owned by the testator at the time when he made the will. And it was held in that case that, where there was only one universal legatee or residuary legatee, he was entitled to the benefit of all lapsed legacies, to the prejudice of the heirs of the testator, other than forced heirs; and it was held that this right of the universal or residuary legatee to have the benefit of all lapsed legacies was not dependent upon the law of accretion, but was founded upon article 1709 of the Civil Code, declaring:
"Except in the cases prescribed in the two preceding articles [allowing accretion in the two specified instances of conjoint legacies], every portion of the succession remaining indisposed of, either because the *Page 732 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."
It is plain, therefore, that, if we hold that the phrase "share and share alike," or any such expression of mere equality between or among two or more residuary colegatees, is an assignment of the fractional part of the legacy bequeathed to each colegatee, under the provisions of article 1707 of the Civil Code, a so-called residuary legacy in favor of two or more colegatees would not be a universal or residuary legacy at all, but would constitute two or more legacies under a universal title, according to the number of colegatees named in the testamentary disposition.
The fault in the argument for the prevailing opinion in this case is in the court's taking for its premise one of the two alternative conclusions which the court is seeking to arrive at as the correct conclusion. It consists of placing the cart before the horse — so to speak. The article of the Code provides that a legacy bequeathed to two or more legatees by one and the same testamentary disposition shall be considered as being made conjointly, so as to allow accretion, when it is made without the testator's assigning to each colegatee his part in the thing bequeathed. In this case the thing bequeathed to the two residuary legatees was the whole residue of the testator's estate, and it was made by one and the *Page 733 same testamentary disposition in favor of the two legatees. The only question, therefore, which the court is called upon to decide is whether the phrase "share and share alike" constitutes an assignment of the part bequeathed to each colegatee in the thing bequeathed — i. e., in the whole residue of the testator's estate. In the prevailing opinion the court has assumed that the phrase "share and share alike", in the testamentary disposition in favor of the two colegatees, is an assignment of the part bequeathed to each colegatee, so as to divide the testamentary disposition into two legacies under a universal title, each legacy being for one-half of the residue of the estate. Having assumed that to be true, there is no escape from the conclusion that the supposed universal or residuary legacy made in favor of the two colegatees was in fact and in law not a universal or residuary legacy to the two colegatees, but consisted of two distinct legacies under a universal title, assigning to each of the two legatees the one-half part or interest in the thing bequeathed. If that is sound reasoning, article 1707 of the Civil Code, which was article 1700 of the Code of 1825, and was article 195 of the Code of 1808, could never have been applied to a residuary or universal legacy, because, when the testator, in a testamentary disposition made in favor of two or more legatees by one and the same testamentary disposition, assigns to each colegatee his undivided or fractional interest in the thing bequeathed, the testamentary disposition is not in truth a residuary *Page 734 or universal legacy, but constitutes two or more legacies, each under a universal title. All of this is explained well in the Succession of Burnside, 35 La.Ann. 708, in the opinion written by Justice Manning for the court, as well as in the concurring opinion by Justice Fenner.
The argument of the plaintiffs, appellants, in this case, of course, is that, as there were two universal or residuary legatees named in the will, each one of them was a universal or residuary legatee for only one-half of the residue of the estate — whereas in the Succession of Burnside only one universal or residuary legatee was named in the will. That is another example of arguing in a circle — or begging the question. The only question which the court has to decide in this case is whether the phrase "share and share alike" has the effect of dividing the one universal or residuary legacy into two legacies under universal titles, each legacy being for one-half of the residue of the estate. That question was disposed of — as definitely as any question of law could be disposed of by any court of justice — in the Succession of Wilcox and in the Succession of Maus and in the Succession of Blossom. In fact, as Justice Manning pointed out in the Succession of Burnside, 35 La.Ann. page 720, "the whole subject was reviewed and reconsidered with the same result in Lebeau v. Trudeau, 10 [La.] Ann. 164." Article 1709 of the Civil Code therefore merely confirms the right of the only surviving universal or residuary legatee to receive *Page 735 the lapsed legacy against the claim of the collateral heirs of the testator.
I respectfully submit, however, that there is no good reason why we should reconsider again the question which is presented in this case, as to whether the legacy in contest is or is not a conjoint legacy, under the definition given in article 1707 of the Civil Code — and which question was put to rest in the long line of decisions commencing with the case of Lebeau v. Trudeau, 91 years ago. It is too late now to reconsider the application for a rehearing which was well considered and finally rejected in the Succession of Wilcox, 18 years ago — or the one which also was well considered and finally rejected in the Succession of Maus, 13 years ago — or the one which likewise was well considered and finally rejected in the Succession of Blossom, only 6 years ago.
The decision in this case is conceded to be a reversal of the court's long-established interpretation of article 1707 of the Civil Code on the subject of conjoint legacies. But the court overlooks the fact that the Legislature itself, has ratified and confirmed expressly, twice, the court's interpretation, as the true and intended meaning of this article of the Civil Code — first, by re-enacting, without any change, article 195 of the Code of 1808, as article 1700 of the Code of 1825, and afterwards by re-enacting the article, without any change, as article 1707 of the Revised Civil Code of 1870. This decision, therefore, will be regarded, *Page 736 not only as a reversal of the meaning which the court and the Legislature both have given expressly and consistently to this article of the Civil Code, but also as an abolishment of the rule of statutory construction, which I have referred to, which is observed universally by the text writers on the subject, and which has been obeyed consistently heretofore by this court in its many decisions on the subject.