On Application for Rehearing.
Monroe, J.The City of New Orleans and Mrs. Emile Kuntz have applied for a rehearing, mainly upon the ground that the presumptions of survivorship, established by the Civil Code, are inapplicable to testamentatary successions, and from this point the arguments of the counsel representing the two opponents mentioned, as also those of counsel representing other parties in interest, diverge in support of different theories as to the law which should govern the case. It is not now contended by any one that the “circumstances of the fact” which are disclosed are such as to justify the court in holding that either of the decedents survived the other, or that they died simultaneously; the *68counsel who have presented arguments in support of the application for rehearing, although disagreeing as to the disposition which should ultimately be made of the successions, concurring in the opinion that neither decedent has been affirmatively shown to have survived the other; that neither can, therefore, be held to have inherited from the other; and hence, that neither succession passes through the other, but that each is transmitted directly to those entitled to it, as though the other succession had never existed. The question, then, is, does the law of Louisiana, as applied to the case presented, so read, or intend?
The following provisions of the Civil Code are applicable to the subject, to-wit:
“AH. 9S6. If several persons respectively entitled to inherit from one another happen to perish in the same event, such as a wreck, a battle, or a conflagration, without any possibility of ascertaining who died first, the presumption of survivorship is determined by the circumstances of the fact.”
“Art. 9S7. La the absence of circumstances of the fact, the determination must be guided by the probabilities resulting from the strength, age and differences of sex, according to the following rules. * * -x- * * * *
“AH. 9S9. If those who have perished together were above the age of fifteen years and under sixty, the male must be presumed to have survived where there was an equality of age or a difference of less than one year. If they were of the same sex, the presumption of survivor-ship by which the succession becomes open in the order of nature must be admitted, thus the younger must be presumed to have survived the elder.”
Applying the rules thus prescribed to the case at bar, it would be presumed that Miss Angele Langles survived her mother, since they were “above the age of fifteen years and under sixty,” and she was the younger. But it is said that this rule is inapplicable to testamentary successions; and an earnest effort has been made to sustain this proposition by appeals to reason and authority, and by the argument "ab inconveniente.”
Considering this last mentioned argument, first, we find that the learned counsel who represent Mrs. Emile Kuntz have this to say concerning the effect, in this case, of the application' of the doctrine of the opinion which has been handed down, to-wit: “By the operation of law, in the absence of proof as to the happening of the conditions under *69which alone the succession ¶ of the mother could haye passed to the daughter, the estate of Pauline Langles would have been transmitted to the nearest of kin, to whom, by every tie of affection, as well as the policy of the law, it should have passed. By giving effect to the legal presumptions, one-half of the inheritance is conferred upon persons, to whom she neither declared nor designed that it should revert. The order of nature, instead of being pursued, is inverted, and the property which she had accumulated passes „to persons having claims neither upon her affection nor upon her gratitude.
“If the present judgment is to stand, no portion of the estate will be transmitted in accordance with the express desire of the testatrix. None of the relatives mentioned in its legacies are to obtain the veriest mite; none of the charitable bequests provided for are to be made efficacious. Her estate is to be transmitted, not to her heirs, not to her t legatees, not to her beneficiaries, but to the heirs, beneficiaries and legatees of her daughter. (Italics by the counsel.) Her affection for her kindred is evidenced by the dispositions! of her testament. * * * She had every reason to believe that, unless 'her daughter survived, with the exception- of the legacies conferred in the will, all the residue of her estate would pass to her heirs at law, should it happen from any cause that the projected Memorial Hospital for Women and Children could not be established, pursuant to the directions of her testament.”
The opponent on whose behalf this argument is presented is a niece of the late Mrs.'Pauline Langles. But she is not mentioned in her aunt’s will nor in that of her cousin, Miss Angele Langles. Hence, she will get nothing from either succession, unless it is held that Mrs. Langles survived, and inherited from her daughter, or else that neither survived, and that the two successions are to be disposed of independently of each other (in which case she would inherit, by representation, from her aunt’s succession), and unless, in any event, the principal bequest in her aunt’s will, i. e., the bequest in favor of the Memorial Hospital for Women and Children, is set aside and annulled. This opponent alleges and has undertaken to prove that her cousin, Angele Langles, was not likely to have survived her mother, and she' prays in her opposition, that Mrs. Langles be held to have survived and therebv to have become the sole heir of her daughter, and that the legacies in the will of Miss Angele Langles be held, therefore, to be of no effect; or, that it be held that the deaths were simultaneous, and that both wills are inoperative; or, in any event, that the depositions in favor of *70the Memorial Hospital be decreed null, etc. Under these circumstances, and in view of the fact that the opponent’s sole object in coming into court is to prevent the declared wishes of her aunt and cousin, concerning the disposition of their respective estates, from being carried into effect, the solicitude which is expressed in her behalf, lest that result should be accomplished otherwise than in accordance with the prayer of her opposition, may be readily understood.
But, although the hardship, if there be any, may fall upon different persons, it will be no greater, and hence the general consequences will be no more disastrous, that the estate of Mrs. Langles does not go to her heirs, or to her legatees, etc., but goes to those of her daughter, under the judgment as rendered, than it would be if the estate of the daughter should go, not to her heirs, or to her legatees, etc., but to 'those of her mother, as the opponent would have it. In the latter case, it is true that the opponent would participate in the distribution, but it is difficult to perceive what p"ecise principle of law, or equity, would thereby be subserved, since Mrs. Langles seems to have done her best to exclude the opponent from such participation, and it can hardly be denied that she had that right. The proposition that because she made a will disposing of the whole of her estate to the exclusion of the opponent, she thereby intended to show her affection for the latter and to secure to her a portion of the estate from which she was excluded, involves, as it seems to us, a parodox, the clue to which we have been unable to discover, possibly because of our inability to follow the learned counsel in the attempt to show that we shall be conforming to the wishes of the two testatrices by decreeing, acording to the prayer of the opposition, that none of those wishes, as expressed in the testaments before us, shall be carried into effect, but that the opponent, who, by the terms of both testaments, is entirely excluded from both successions, shall, nevertheless, participate in the distribution of one or both. We pass on, then, to the opponent’s appeal to reason and authority.
It is said that our law, like that of France, and unlike the) law of Rome, favors the transmission of property, not by testament, but by what is called “natural descent,” to the nearest of kin. “Legal succession,” say the learned counsel for Mrs. Kuntz, “is the intent of the law; it favors legal succession; it permits testamentary disposition. In so far as its policy can be indicated by legislative enactment, it endeavors to mark the distinction. While reserving to the individual the right *71of disposing of his property (and this with the limitations marked by the legitime) it has required that he shall make his dispositions subject to those conditions, and every condition, imposed by law. With respect to legal successions, which it favors, it attempts by every possible means, to encourage the order of nature which it designs to perpetuate * * * pursuant to this disposition in our law, to favor the order of nature, and to so direct when it replaces the intestate that a man’s posterity, or his ascendants, or his nearest of kin in the collateral line, shall enjoy the fruits of his accumulations; in its zealous endeavor to secure this end it has provided means that are denied to those whose claims to a gratuity conferred is founded merely upon the desire of the testator. * * * The law has no desire, except with regard to natural heirs, to see that any property shall go to the persons to whom it may please the fancy of the testator to transmit it. Its object is to protect its own policy as to the doctrine of transmission, to keep the property within the family, to follow the order of nature, and to sec that children, and, in the absence of children, ascendants, and, in the absence of both, the nearest collaterals, shall enjoy the inheritance. Therefore, in relation to these two classes of successions, the law has decreed certain evidentiary requirements as to both, but a special presumption as to the one of them. As to the commorientes, he who claims by testament is obliged to establish, affirmatively, and by evidence, the survivorship of the person from whom it is pretended that the property was transmitted to the claimant; and if he fail to establish the existence of his author, under the article of the Code, which is written under the title of “Donations and Testaments,” the testamentary disposition is ineffective — there is caducity. But if his right is derived from the operation of law; if his claim be in harmony with the design of favoring the order of nature; if there has been no will, and his title is of the kind which it is the settled policy of the State to encourage, out of the very necessity which arises that there should be no vacancy, no lapse, no suspension, no moment at which there shall cease to be actual ownership, a contingency possible solely in the case of successions ab intestato, and only under the very circumstances provided against in Article 936, and one which can never occur where there has been a testamentary disposition, there is established a presumption of ownership.”
When we consider the facilities which are afforded for the making of testaments in this State, and the solicitude which the courts have *72always exhibited to maintain testaments when made, the idea suggests itself that the learned counsel may, perhaps, be pressing their argument as to the policy of the law beyond the support upon which it rests. But let us accept it as sound and apply it to the instant ease. Miss Angele Langles was the daughter of Mrs. Pauline Langles. She and her mother were, respectively, entitled, by law, to inherit from one another. She was over fifteen years of age and her mother was under sixty; and they perished in the same “wreck * * * without any possibility of ascertaining which died first.” Under these circumstances, there can be no doubt, for the purposes of the question, whether the mother should inherit from the daughter, or the daughter from the mother, or whether neither should inherit from the other, that it is the policy of the law that the daughter should have inherited from the mother, since the law provides that the daughter, surviving the mother, shall inherit from her, and declares, in terms, that, in the precise case stated, “the younger must be presumed to have survived the elder.” And the policy of the law, as thus indicated andj declared, has been carried out in the judgment of which the learned counsel complain, and which holds that the daughter survived the mother and, therefore, inherited her estate; and that the natural and legal order of succession was thereby established. But the argument to which we have referred holds that by reason of the fact that these, mother and daughter, who, by law, were, respectively, entitled to inherit from one. another; made wills, each in favor of the other and in strict conformity, therefore, to the supposed policy of the law, they thereby took themselves beyond the reach and effect of that policy, and should be denied the presumptions established in favor of those who conform thereto, and the counsel concludes as follows:
“The only method by which it is possible, even approximately, to carry out the intention of the two commorientes is to pursue the usual and accepted practice, and the orderly course of law; to adopt that theory of the law which is consonant with the truth of the fact, and to declare that it is impossible to determine which of the- two, perishing in a common event, survived the other.”
It seems to us that this conclusion is a complete non-sequitur, with respect to all that has been heretofore stated concerning the law, and the policy of the law, which it purports to express. If the law favors the transmission of estates to the nearest relative of the deceased it would be unreasonable to hold that it disapproves of measures taken to *73secure that result. And when, as we find in this case, it establishes, under particular circumstances, a presumption of survivorship between persons respectively entitled to inherit from one another, no good reason has been suggested why such persons should be held to forfeit the benefit of such presumptions, because, by their wills, respectively, they undertake to dispose of their estates in favor of each other and thus to conform to that policy and subserve the purposes for which the presumption in question is established.
If, therefore, it is true that, upon construing the provisions of the Code upon the subject of “successions,” with those which relate to “donations” mortis causa, it necessarily results that the presumptions established in order to secure the transmission of property according to the policy of the law are destroyed in all cases where testaments are made transmitting property according to such policy, it must be admitted that such a result is equally illogical and unfortunate, and ought not, therefore, to be accepted if the law to be construed is susceptible of any other interpretation.
It is said, however, that Article 936 et seq. of the Civil Code are found under the title “Legal Successions,” the provisions of which are intended to apply exclusively to successions ab intestato, and, hence, that, by reason of their position, it must be held that these articles are inapplicable to testamentary successions. The proposition is thus stated in the argument of the counsel: “Therefore * * * the provisions embraced under the title 'Legal Successions’ are restricted, exclusively, to successions by the operation of the law, unless, by the positive declaration of a given article, its operation is extended to dispositions inter vivos and mortis causa.” This observation is applied to Articles 936, 937, 938, 939, which establish the presumption. of survivorship, as we have seen, with respect to certain persons, under certain circumstances, and without specific reference to whether they die testate or intestate. Now, the preceding article under the same title (Article 935), reads: “The place of the opening of the succession is fixed as follows,” etc., and the article goes on to prescribe where successions shall be opened, also without specific reference to whether they are testamentary or ab intestato. Net, it will hardly be contended that this article is inapplicable to testamentary successions; so that it follows that the proposition of the learned counsel is too broadly stated when applied to the Civil Code of Louisiana; and an examination of the different commentaries upon the Code Napoleon to which we have been *74referred, leads to the conclusion that, as stated, it is not sustained by those authorities. It is, no doubt, true that a majority of the French writers are of the opinion that Article 720 et seq. of the Code Napoleon, which correspond with Article 936 et seq. of our Code, do not apply to cases where the persons who perish together are entitled to inherit from each other only by reason of reciprocal testaments, and not otherwise. And it is also true that unless the particular case of commorientes who are at once the heirs at law and the instituted heirs of each other is specially mentioned, the opinion referred to is enunciated in such general terms as, perhaps, pnma fade, to warrant the inference that it relates as well to the case stated as to the case of commomentes who are entitled to inherit from one another by virtue of testaments alone. But where the fact is at all recognized that the commorientes may be the heirs ab intestato as well as the testamentary heirs of each other, so far as we have been able to discover, the further fact is also recognized, that such a case constitutes an exception to the rule of the inapplicability of the presumption of survivorship to testamentary successions, and we have been referred to no author and have found none who holds, specifically and affirmatively, that the heir at law in whose favor the presumption of survivorship is established is deprived of the benefit of that presumption because the person from whom he is entitled to inherit has chosen to make a will in his favor. Nor does the reason of the law sustain such a conclusion — quite the contrary. Troplong, in dealing with this particular question, says:
“Then the son, being at the same time instituted heir .and heir ab intestato, the survivorship must be established by the law of legal successions, because the two rights are fused together, and what the law decides in behalf of the heir ab intestato can not be destroyed by the disposition of man, making him a testamentary heir. Is there anything which can prevent this son from being the legal heir of his father? No, indeed; and certainly the testament made to benefit him can not impair this imperishable quality. It is, therefore, clear that he will preserve the benefit of the presumptions which the law has intended to attach to it, and that he will preserve this even if he unites to the right of heir ab intestato the right of testamentary heir, which fortifies it.” Troplong, Donations and Testaments, Vol. 3, pp. 635, 646.
Applying these observations to the case at bar, Mrs. Langles and her only daughter, an unmarried woman, were not only the legal heirs, but, *75for a certain portion of their respective estates, were the forced heirs of each other. To them, the law said: “If you perish in the same wreck, without any possibility of ascertaining which died first, that question will be determined by a presumption which is established in the interest of the natural order of successions, and agreeably to which, in your case, it will be held that the daughter survived the mother.” No one denies that this was the law before the making of the two wills which have been submitted for our consideration, and before the makers of those wills sailed upon their last voyage; and no one denies that it then applied to those two ladies. But, it is said that this law was abrogated and annulled by the making of the wills; and the inquiry is thus suggested ; if the law, in unqualified terms, established a presumption, as a result of which, in the event of their perishing in the same wreck, Miss Langles was to have been held to have survived, and to have inherited from her mother, which presumption, the heirs, legatees, and creditors, of Miss Langles, were authorized to invoke in the contingency provided for, upon what theory of law could Mrs. Langles, by any act of hers, deprive her daughter and her daughter’s heirs, legatees and creditors of the benefit of the presumption thus established by law in their behalf? And upon what theory of reason, assuming that she had the power to accomplish such a result, must she be held to have done «o, when it is manifest that she had no intention of interfering with such presumption, but that she was doing the best she could to transmit her estate in accordance with the policy of the law, in support of which the presumption in question was established?
If these two ladies had not been entitled by law to inherit one from the other, it might have been said (and that is what we understand the majority, though by no means all, of the French writers to say) that they could not, by conferring such sight, each upon the other, by means by their respective testaments, also confer, each upon the other, the benefit of the presumption of survivorship, since that presumption is established by law in favor of persons who are entitled to inherit each from the other, irrespective of their testaments, and is not a benefit, or advantage, which is to be considered as lying about at large and which any two persons can confer upon each other, at their option, by making wills in each other’s favor. But, being as they were, the question was not whether Mrs. Langles and her daughter, by their joint action, could acquire the benefit of the presumption of survivorship, but whether, being already, and by operation of the law, entitled to the full benefit *76of that presumption, the one of them could be deprived of it by the other, and, if so, whether she must be held to have been so deprived, not only without any indication that that other intended to deprive her, but in the face of an act affirmatively indicating a contrary intention? And these questions, we think, for the reasons which have been given, should be answered in the negative.
The learned counsel for the City of New Orleans argues that Article 936 et seq. of the Code, establish a presumption of survivorship only in cases where (as we understand the argument) the fact of survivorship is otherwise established or rendered probable. They say, referring to the articles in question: “They were never to control eases in which the supposition of survivorship is repelled by the known facts, or made highly improbable.” It is, however, conceded that the commorientes in this case perished in the same wreck, “without any possibility of ascertaining which died first”; and we are unable to say that the supposition of survivorship is repelled by the known facts. On the contrary, the case is within the letter and spirit of the law establishing the presumptions upon that subject. If persons perish in the same event “such as a wreck, a battle, or a conflagration,” it is not to be supposed that either has survived for any great length of time, since such events do not, ordinarily, last for any great length of time. As a fact, Miss Langles may not have survived her mother at-all, or she may have survived her during the smallest conceivable subdivision of time. But we have nothing to do with those matters. The facts with which we have to deal are those which the law requires as the basis, not of the fact, or the duration, of the survivorship, but the presumption of survivorship, i. e., that the persons who perished were entitled to inherit from each other; that they perished by the same event; and that, being of the same sex, they were over fifteen years of age and under sixty, respectively. These facts being established, the presumption follows, with the consequence, that the person who is presumed to have survived inherits from the other, exactly as though such survival has been established as a fact. The learned counsel asks the question: “Did the testatrix in each will mean to say I endow a hospital, but if we are killed in a wreck and I die thirty seconds before you I withdraw the endowment from the hospital and give all I possess, not to my heirs, but to your heirs, whether I know them or not, whether their relations with me have been friendly or otherwise?”
And from this it is argued that, conceding that Angele Langles sur*77vived her mother, and conceding that, by the terms of the will, she inherited her mother’s estate; nevertheless, as the survival was not long enough to enable her to use or enjoy the inheritance, it ought to be decided, in this case, that she never inherited at all. Probably, if it had been proved, as a fact, that Miss Langles survived her mother, this argument would not have been presented. If she had survived, say, for five minutes, and had devoted that time to the writing of another will, and the will had been here presented, it is reasonably certain that the argument would not have been presented. And yet, the results, so far as Mrs. Langles’ wishes are concerned, would have been the same. Her endowment of the hospital would have been withdrawn and her estate would have gone to the heirs of her daughter and not to her heirs. It is to be regretted, no doubt, that 'the pious and benevolent intentions of the two ladies, whose estates are here in controversy, can not be carried into effect, but the law which regulates) the transmission and distribution of estates,whether ab intestato or by means of testamentary dispositions, is a rule of property which concerns the living as well as the dead, and as to the duty of applying which the courts have no discretion.
Rehearing refused.
Provosty, J., takes no part, this case having been submitted and decided prior to his taking his seat on this bench.