Since I have filed my second dissenting opinion in this case the attorneys for the appellants have filed a brief in opposition to the application of the appellee for a rehearing. In this brief the attorneys express their assurance that the chief justice — referring to me — recognizes the right of the Supreme Court to correct its errors by overruling its decisions. In support of that assurance the attorneys cite the case of Succession of Ledbetter, 147 La. 771, 85 So. 908, in which the court by a unanimous decision overruled the decision rendered in Rice v. Key, 138 La. 483, 70 So. 483, and repeated in Succession of McDuffie, 139 La. 910, 72 So. 450. In the Succession of Ledbetter I wrote the opinion for the court. I had written a dissenting opinion in both Rice v. Key and Succession of McDuffie, in both of which cases the court held that the giving of a legacy to one legatee and at the same time giving, at his death, the same legacy to another legatee, was the *Page 737 same as giving the usufruct of the property to the first legatee and the property itself to the other legatee. That ruling, of course, was in direct conflict with article 1522 of the Civil Code. For that reason, not only did all of the members of the court concur in the overruling of the two previous decisions, but there was not even an application for a rehearing in the Succession of Ledbetter. Besides, the two decisions which were overruled by the decision in the Ledbetter case were not of long standing, like the long line of decisions which are being overruled in the present case. And so the decision in the Ledbetter case was not, as is the decision in the present case, a violation of the 28th Proverb, Chapter XXII — "Remove not the ancient landmark, which thy fathers have set."
I have referred already to the fact that the Legislature has held 9 (now 10) regular sessions and 15 extraordinary sessions during the 18 years since the decision was rendered in the Succession of Wilcox, and has held six (now seven) regular sessions and ten extraordinary sessions since the decision was rendered in the Succession of Maus. It is a matter of common knowledge that every session of the Legislature, in every State, is composed largely of members of the profession of law. We may take cognizance therefore of the fact that the many sessions of the Legislature of Louisiana that were held during the period, of say 8 years, commencing with the date *Page 738 of the decision in the Succession of Wilcox and extending 3 years beyond the date of the decision in the Succession of Maus, were composed largely of lawyers. Two of them in fact are now members of the group of five justices who have subscribed to the prevailing opinion in the present case; one of them being the author of the prevailing opinion in this case; the other being the senior member of the group of 5 justices who have subscribed to the prevailing opinion in this case. They were both nominated in the Democratic Primary Election in January or February 1928 — and were thereby virtually elected — as members of the Legislature, and they took their seats in the Legislature at the opening session on the second Monday in May 1928. Both of them thenceforth served in every session of the Legislature up to and including the 4th Extra Session of 1935, which was two years beyond the time when the decision in the Succession of Maus was rendered. The decision in the Succession of Wilcox was rendered on February 13, 1928; the petition for a rehearing was denied on March 12, 1928; and on that day the justice who had written the opinion in the Succession of Schonekas handed down his dissenting opinion in the Succession of Wilcox. See 165 La. 803, 116 So. 192. The decision in the Succession of Maus was rendered on May 29, 1933; and the petition for a rehearing was denied on July 17, 1933. See177 La. 822, 149 So. 466.
When we consider now how vigorously the justice who had written the opinion *Page 739 in the Succession of Schonekas dissented from the prevailing opinion in the Succession of Wilcox — and consider how he and two other members of the court dissented from the court's refusal to grant a rehearing in that case — and then consider how all of that dissension gave way to harmony in the unanimous decision rendered in the Succession of Maus — we are compelled to assume that if the decision rendered in the Succession of Wilcox and repeated in the Succession of Maus had been a wrong interpretation of such an important article as article 1707 of the Civil Code the lawyers generally throughout the state would have taken notice of it, and the matter would have been brought to the attention of the Legislature in one of its many sessions held during the eight years following immediately the rendering of the decision in the Succession of Wilcox, so that the Legislature itself would have amended the law if it needed amendment, instead of leaving it to the Supreme Court to overrule its decisions on the subject after they had formed a part of the law of the state for many years. At any rate that is the presumption of law which is so well established in the rules on the subject of statutory construction.
On this subject let me cite a case in which the decision is very appropriate here, namely, State v. Cusimano, 187 La. 269, loc. cit. 277, 174 So. 352, loc. cit. 355. That decision was unanimous, and I took occasion to write a concurring opinion. In *Page 740 the present case the court has before it its long-established interpretation of an article of the Civil Code, namely, article 1707; whereas, in the Cusimano case the court had before it its previous and repeated interpretation of two sections of an article of the Constitution, namely, sections 4 and 6 of article IV, which are reproductions of articles 48 and 50, respectively, in the Constitution of 1898. The first of these sections forbids the Legislature to enact any local or special law on any of certain specified subjects, enumerated in that section; and the second section requires publication of the intention to enact any local or special law on any subject not so enumerated. The defendant, Cusimano, pleaded that the law under which he was being sued for a balance due on a State license which he had procured, namely, Act No. 24 of the Third Extra Session of 1935, was violative of sections 4 and 6 of article IV of the Constitution of 1921, and that the previous decisions on the subject, with reference to articles 48 and 50 of the Constitution of 1898, were obviously wrong, and should be overruled. But the court unanimously refused to overrule the former decisions. Inasmuch as the concurring opinion which I handed down in that case expresses my opinion as clearly as I could express it originally now, on this subject of statutory construction — and inasmuch as that opinion, being only a concurring opinion, might suffer the fate of the "many a gem of purest ray serene the dark *Page 741 unfathom'd caves of ocean bear", — I take the liberty of repeating here the appropriate and salient parts of the opinion — thus:
"The provisions of sections 4 and 6 of article 4 of the Constitution of 1921 were in articles 48 and 50, respectively, of the Constitution of 1898. My opinion once was that the court was mistaken in its original interpretation of these articles of the Constitution of 1898, in the case of State ex rel. Fortier v. Capdevielle, Mayor, et al., 104 La. 561, 29 So. 215; but the same interpretation has been given so many times, and with such deliberation, since that case was decided, that it ought to be accepted as the correct interpretation. State ex rel. Fortier v. Capdevielle, Mayor, et al. was decided in 1901, and was followed by Mulhaupt v. City of Shreveport, 126 La. 780, 52 So. 1023, which was decided the same way, in 1910. Then came State v. Landry, 139 La. 451, 71 So. 763, to the same effect, in 1916. I handed down a dissenting opinion in that case, which was concurred in by Chief Justice Monroe, but the three other members of the court, as then constituted, adhered to the two former decisions. I wrote a dissenting opinion on the subject again in Federal Land Bank v. John D. Nix, Jr., Enterprises,166 La. 566, 117 So. 720, in 1928; but to no avail. Hence I yielded to the majority opinion on the subject, in State ex rel. City of New Orleans et al. v. Louisiana Tax Commission, 171 La. 211,130 So. 46, 48, in 1930, *Page 742 where, even yet, some doubt was expressed about the correctness of the doctrine of the earlier cases `as an original proposition.' * * *
"Hence, if the proposition were being presented now for the first time, I would see great force in the argument that the original meaning of these provisions in the Constitution was that the Legislature was forbidden to enact any local or special law on any of the subjects enumerated in what is now section 4 of article 4; and that, on any subject not enumerated in what is now section 4 of article 4, the Legislature might pass a local or special law, but only on compliance with what is now section 6 of that article of the Constitution. * * * However, I assume that the delegates in the Constitutional Convention of 1913 were aware of the interpretation which this court had given to articles 48 and 50 of the Constitution of 1898, in State ex rel. Fortier v. Capdevielle, Mayor, in 1901, and in Mulhaupt v. City of Shreveport, in 1910; and I assume that the delegates in the Convention of 1921 knew also of the decision that was rendered in State v. Landry, in 1916. Hence the two Constitutional Conventions must have approved of the court's interpretation of articles 48 and 50 of the Constitution of 1898, because these provisions were retained, without any change in that respect. Besides, it is not impossible for something that is originally wrong to become right by usage. For example, a manufacturer of timepieces would *Page 743 be an iconoclast if he should turn out a watch or a clock now with the hour IV appearing as it should have appeared on the dial of the first timepiece that was ever made; and yet it would be unpardonable to write the numeral IIII anywhere else but on the dial of a timepiece. Imagine, for example, article IIII, instead of article IV, of the Constitution. The error on the face of the timepiece is accepted as being right because it is something venerable. And so it should be with regard to a judicial pronouncement of many years standing, if it be harmless — even in a civil-law jurisdiction — where stare decisis is not overworked."
The first case in which this court held that an expression such as "share and share alike," in a testamentary disposition in favor of two or more legatees, was not an assignment of the fractional part of the legacy bequeathed to each co-legatee, in the meaning of article 1707 of the Civil Code, was the case of Parkinson v. McDonough, 4 Mart., N.S., 246, decided in 1826. The legacy in that case was of one-eighth of the testator's estate, in favor of four legatees, and the expression in the testamentary disposition was "to be equally divided among them." The court held that that legacy was a conjoint legacy, under article 195 of the Code of 1808 (which is now article 1707 of the Revised Civil Code), notwithstanding the expression "to be equally divided among them." And, afterwards, in the opinion rendered in the *Page 744 Succession of Wilcox, 165 La. 803, 116 So. 195, 194, in 1928, it was declared emphatically that there was no difference in the meaning between the phrases "to be equally divided among them" and "share and share alike." That declaration — that there was no difference in the meaning between the phrase "to be equally divided among them" and the phrase "share and share alike" — was affirmed — or repeated substantially — in the Succession of Maus, 177 La. 822, 149 So. 466, in the opinion written by the late Justice Land in 1933, and again the declaration was repeated substantially in the opinion written by Justice Odom in the Succession of Blossom, 194 La. 635, 194 So. 572, in 1940.
But the most striking and important case in which it was held that an expression having the same meaning as "share and share alike," in a testamentary disposition in favor of more than one legatee, was not an assignment of the fractional part bequeathed to each legatee, was the case of Lebeau v. Trudeau, 10 La.Ann. 164, decided in 1855, under article 1700 of the Code of 1825 (now article 1707 of the Revised Civil Code). In that case the legacy was a residuary legacy in favor of eight (8) legatees, and the expression was "shall be divided in equal proportions among the [8] persons hereinafter named," et cetera.
The next case was Mackie v. Story, 93 U.S. 589, 23 L.Ed. 986; in which case the expression in a residuary legacy to two *Page 745 legatees was "to be divided equally between them."
The next case in which a similar decision was rendered was the Succession of Dupuy, 33 La.Ann. 277, decided in 1881; in which case the residuary legacy to 5 legatees was coupled with the phrase "by equal portions."
There is no need for me to repeat here the purport of all of these earlier decisions. In each one of them the court dealt with a phrase similar to "share and share alike." It was in the Succession of Wilcox, 165 La. 803, 116 So. 192, in 1928, as I have said, that the court for the first time stated that there was no difference in the meaning of the phrase "to be equally divided among them," as used in the case of Parkinson v. McDonough in 1826, and the phrase "share and share alike" appearing in the will in the Succession of Wilcox.
But, as I have observed, the opinion written by me in the Succession of Wilcox in 1928 is not the only opinion in which this court has declared that there is no difference between such an expression as "to be equally divided among them," appearing in the ancient landmark entitled Parkinson v. McDonough, and the expression "share and share alike", appearing in the will in the Succession of Wilcox. For, in the Succession of Maus, written by the late Justice Land, and concurred in by all of the members of the court, as then constituted, including the three justices who *Page 746 alone had rendered — and had afterwards withdrawn — the decision in the Succession of Schonekas, the court repeated that there was no difference between the phrase "to be equally divided between them" and the phrase "share and share alike [177 La. 822, 149 So. 467]." Here is what was said in the unanimous opinion rendered in the Succession of Maus, in 1933:
"The words `share and share alike' and `to be equally divided between them,' when added to a legacy, are terms of similarimport, 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 italics are mine.]
And, again, as I have said, in the Succession of Blossom,194 La. 635, 194 So. 572, 573, as late as 1940, in the unanimous opinion written by Justice Odom and concurred in by the chief justice and by the late Justices Land, Rogers and Higgins, and by Justices Fournet and Ponder, a residuary legacy bequeathed to two named legatees, in these words, "I wish this property to be equally divided between" the two named legatees, was declared to be a conjoint legacy, the same as if the testatrix had said "share and share alike", as in the Succession of Wilcox and in the Succession of Maus; which two cases alone were cited by Justice Odom as authority for his pronouncement. *Page 747
Even in the prevailing opinion in the present case it is said (on the 18th page [28 So.2d 8]): "In the popular and ordinary sense the phrase `share and share alike' means in equal shares or proportions." The phrase "in equal shares or proportions," of course, has the same meaning as the phrase "to be equally divided among them," which was construed in Parkinson v. McDonough in 1826; which in turn has the same meaning as the phrase "shall be divided in equal proportions," which was construed in Lebeau v. Trudeau in 1855; which in turn has the same meaning as "to be divided equally between them," which was construed in Mackie v. Story; which phrase has the same meaning as "by equal portions", which was construed in the Succession of Dupuy in 1881.
What I am trying to explain is that, when the court, as in the present case, expressly overrules the decision which was rendered in the Succession of Wilcox and in the Succession of Maus, the court, by necessary implication, is overruling also all of the decisions in which the court has construed the several phrases having the same meaning as "share and share alike" — commencing with Parkinson v. McDonough in 1826 and including the Succession of Blossom in 1940.
If the petition for a rehearing in this case should be denied our jurisprudence will have suffered the worst upset that it has ever suffered in the history of the state. For there was never a case presented to *Page 748 this or any other court of justice in which the question of law tendered for decision was so well settled already as the question presented in this case was settled by the line of decisions which I have cited, commencing 120 years ago.