Oar Application eob Rehearing.
The distinguished counsel of the widow of the deceased concedes that J. B. Schiller has made a will valid in form, but he denies that Schiller has thereby disposed of his estate, that is, of all the property belonging to him at.his death, in favor of certain persons, and in certain proportions. He contends that there was no disposition of property, because there was no determinate legatee, and asks what heirs, what proportion, the testator meant. Practically, he demands the nullity of the will.
The undisputed facts of the case do not justify an interpretation of the will of the deceased, which on its face, is perfectly unambiguous and •clear, and requires no construction.
On the third of July, 1865, when the will was made, on the twenty-ninth of December, 1869, when Schiller departed this life, his only presumptive heirs were the issue of his marriage with his surviving 'wife. *
The laws, which were in force at the date of the will and at the death of the testator, on the subject of the successions, legal and testamentary, and of the disposable portion, were the same, not having been changed in the interval.
*5The testator, at the date of his will, considered that his three-daughters, who were then his presumptive heirs, and whom he termed in the instrument his legal heirs, should be the recipients of all his favors, and should inherit from him what property he would leave; and he continued to his death so to view them, as he has not altered his will.
The words “ legal heirs,” used by him, have a legal meaning, and clearly indicate those who were to inherit his fortune. 7 A. 267; 14 A. 639; 5 A. 146; Abbott L. D. vo. Heir, 556; Wigram on Wills, 2 vol. p. 297, § 2; Journal du Palais, 1811, p. 4.
We are referred to the decision in the Succession of Mrs. Walker,, 32 A. 323, to show that, where a parent institutes his forced heir his universal legatee, there is no testamentary disposition. The Court did not so rule. What was there decided is, that in such a case, when there are no debts and no legatees to satisfy, the appointment of an executor was cumbersome and inoperative.
We find the intentions of the testator couched in unequivocal language, and the disposition which he has made of his property authorized by law.
At his death one half of the community assets accrued to his-widow under the law ; two-thirds of the naked ownership of the remaining half accrued to his three forced heirs, also, under the law, which the-testator, far from overriding, confirmed.
, The remaining third, and the right of usufruct, or enjoyment of the' two first thirds, which otherwise would have accrued to his surviving; wife, the testator bequeathed absolutely to his three daughters, his-' forced, his “ legal heirs,” who take the same, unrestricted by the power of his will.
The law does not favor the dismemberment of real estate.
In justification of our refusal to construe.the will of the deceased' differently from what we have, we can only repeat the language used by Chief Justice Martin on a similar occasion:
“Candles are not to be lighted when the sun shines brightly.’" Theall vs. Theall, 7 L. 230.
Rehearing refused.