As pointed out in the majority opinion, Mrs. Julia Deiches Fertel died leaving an olographic will reading as follows:
"Everything I possess. I leave (the use of it to my husband during his life time, at his death it goes as following.
"To My 2 daughters Nettie and Annie and to my grand son Rodney Fertel Weinberg. To my son Barney Fertel I leave One hundred dollars per month for the maintaince during his life time only to be paid out of the Estate. *Page 642
"None of the properties cannot be sold or mortgaged, twenty years from hence. This will includes my box at the Bank of Commerce N O."
This will was attacked by Barney Fertel on the grounds (1) that it is ambiguous and not capable of interpretation; (2) that it contains a substitution prohibited by the laws of this state; and (3) that the attempted disposition in favor of Annie and Nettie Fertel is void since it was not declared as an extra portion. In the alternative he contended he should receive a legacy of $100 a month in addition to his legitime. From a judgment awarding him his legitime and dividing the remainder of the estate between the two sisters and the grandson, he, as well as his sisters, appealed, the grandson answering the appeal.
The majority opinion, without commenting on or discussing any of the authorities cited by counsel for Barney Fertel to sustain his position other than to say that "All the cases relied on by counsel for Barney Fertel were carefully considered and analyzed in the Blossom case and there is nothing in the French authorities cited by them that detracts from the force of the decision in that case," rests its holding on the decision of this court in Succession of Blossom, 194 La. 635, 194 So. 572, declaring: "The question involved in that case is similar in every respect to the question involved in this case." The majority opinion also states "An examination of these wills (those in the Blossom and instant cases) reveals that while differing slightly in their wording, they are identical as to substance." *Page 643 It is interesting to note, however, that in the majority opinion the holding in the Blossom case is not followed throughout, for in the Blossom case the adopted daughter was given all that the decedent willed her in her testament and, in addition, she received her legitime as a forced heir of the testatrix.
It is my opinion that the language used in the case at bar is more similar in verbiage and meaning to the language used in the cases cited by Barney Fertel to support the position taken by him than it is to the language used in the will involved in the Blossom case, which case did not overrule the cases cited by Barney's counsel but differentiated them, and that involved in the decision of this court in Succession of Law, 31 La.Ann. 456, on which decision the holding in the Blossom case was predicated.
It is to be noted, however, that in refusing the application for a rehearing in the Law case Mr. Justice White, as the court's organ, said: "In this case it is urged that the construction placed by us on the will of the deceased is an addition to its terms * * *. The meaning we have given to the words `to go to,' in the opinion by us expressed, is exactly that hitherto long since attached by this court to similar words in Succession of Ducloslange, 4 Rob. [409], 410; and Roy v. Latiolas, 5 La.Ann. [552], 553. Even if we thought the views expressed in these cases latitudinarian, we would hesitate long before overthrowing the settled jurisprudence giving an interpretation to certain words when used in a last will." *Page 644
Even since the Latiolas case was handed down almost a hundred years ago, it has been the shuttlecock of this court. It was first overruled in 1882 in the case of Marshall v. Pearce, 34 La.Ann. 557, wherein the court said: "Its authority is of the weakest kind," pointing out that the "decision was rendered at Opelousas, when but three Judges were in their seats, Chief Justice Eustis being absent, Judge Preston was the organ of the Court. Judge Slidell, in assenting, expressly referred to the `limited means he had had of examining the subject.' Judge Rost dissented."
Then, in 1916, in the case of Rice v. Key, 138 La. 483, 70 So. 483, 484, this court stated that Succession of Weller,107 La. 466, 31 So. 883, decided in 1902, "in effect, overruled Marshall v. Pearce, and reinstated Roy v. Latiolas." In 1920, in Succession of Ledbetter, 147 La. 771, 85 So. 908, with the present Chief Justice as the organ of the court, the doctrine announced in Rice v. Key was unqualifiedly overruled and that announced in Marshall v. Pearce, which had overruled Roy v. Latiolas, was reinstated.
Only the years later, in 1930, this court, in Succession of Williams, 169 La. 696, 125 So. 858, 859, held that the Williams will giving and bequeathing "unto Mary A. Williams, my beloved wife, for her use and benefit all the property both personal and real to use for the period of her natural life and at her deatheverything shall belong to Lillian R. Williams, my niece * * *" was null and void for the reason that it contained a prohibited substitution within the meaning and contemplation of *Page 645 Article 1520 of the Revised Civil Code. (Italics mine.)
In disposing of her property in the Law succession the testatrix stated she gave and bequeathed "unto my beloved husband, Archibald Welles Beard, all my property of every kind and description, consisting of lands, stock, household and kitchen furniture, farming tools, etc., to be used, enjoyed and occupied by my said husband during his natural life; and at hisdeath, the half of my property or money, to go to Francis HenryBeard and Charles Porter Beard, * * * and the other half to goto the children of Mary Ann Law and William L. Beard * * *." (Italics mine.)
The language used in the disposing portion of the will in the Law succession is so similar to that used in the Williams succession that it is impossible for me to reconcile the two and I therefore conclude it must be considered that the decision in Succession of Law has been overruled by our decision in Succession of Williams, particularly since the Williams case, instead of being overruled in the Blossom case, was differentiated. Consequently, it is my opinion that this ruling is controlling and that a strict adherence to the law as written in the Revised Civil Code is the only safeguard that will ever avoid the continued vacillation by this court on this subject.
To say the least, the will as written is confusing and impossible of enforcement. It is my opinion that the testatrix intended that her whole estate go to her husband with the admonition that the same not be *Page 646 alienated for a period of twenty years and that at his death it should pass to her two daughters and her grandson, subject to Barney's legacy of $100 a month, to be paid out of the estate of the testatrix by her husband and after his death by her two daughters and her grandson.
In the majority opinion, however, in an effort to ascertain the intention of the testatrix, the court has departed from the provisions of Article 1712 of the Revised Civil Code requiring that the intention of the testatrix be discovered whenever possible, with the mandate that such intention be ascertained "without departing * * * from the proper signification of the terms of the testament," for it is my opinion that the majority opinion not only rewrites the will but that this resulting revision is not in keeping with the intention of the testatrix as reflected by the will. The effect of the court's ruling in the majority opinion is to rewrite the will to read: "I leave the usufruct of everything I possess to my husband and the naked ownership thereof to my two daughters, Nettie and Annie, and to my grandson, Rodney Fertel Weinberg," striking out as not written that portion declaring the property "cannot be sold or mortgaged, twenty years from hence," and construing that portion of the will giving Barney Fertel $100 a month during his lifetime as an obvious intent to disinherit him without following the procedure prescribed in the Revised Civil Code, decreeing him to be entitled to his legitime, which is 1/3rd of 2/3rds of the estate, or 2/9ths thereof, necessitating the reduction of the portion of the three legatees *Page 647 accordingly when obviously the testatrix never entertained any such intention.
Of course when she drafted this will the testatrix was ignorant of the provisions of our law with reference to the right of her children to their legitime and to the inhibitions with respect to keeping property out of commerce and of fidei-commissum, but in determining the real intention of the testatrix the will must be considered in its entirety, including those portions thereof that are prohibited by law, and if such consideration is given the will and it is found difficult to ascertain just what her intention was, or that the same is impossible of enforcement, then the will should be declared null.
If the holding in the majority opinion that the testatrix intended to give only the usufruct of her estate to her husband is correct, then, had Barney Fertel chosen not to claim his legitime but instead to accept the legacy left him under the will, to be paid at the rate of $100 a month out of the estate of his mother, the will would be impossible to enforce, at least to that extent, for it would be impossible to give the thing to Barney and at the same time to give the usufruct thereof to the surviving spouse.
There is nothing in the will to show the testatrix intended to disinherit her son, as stated in the majority opinion. It may be she thought she was favoring Barney by giving him $100 a month for his lifetime for even though these people amassed a large fortune, there is a strong suggestion they lived very frugally and, judging from the language used in the will, the testatrix *Page 648 was apparently a person of very limited education. But if the court is right in the belief that she intended to disinherit her son and give his portion to her favored grandson, then the matter becomes even more involved and difficult for we must then decide whether her favoritism for her grandson, as expressed in the concurring opinion of the Chief Justice, was that he "should be substituted for Barney, as one of the heirs of her estate," and as such heir share equally with his mother and aunt, or whether he should be thus favored only if Barney accepted the conditions of the will. In other words, did she intend the results reached by the majority opinion, that is, that her two favored children should receive less than they would have by inheritance in order that the grandson, whom the court feels was intended to be substituted for Barney, might be favored when Barney claimed his legitime?