*722Concurring Opinion.
Fenner, J.It scarcely admits of dispute that, under the existing law of France, of England, and of the States of this Union, Oliver Beirne would, under the terms of the will in hand, take all that is claimed for him in this litigation. The main contention of the learned counsel for absent heirs and for the State is, that the controversy is dominated by certain statutory provisions found in the Civil Code of Louisiana which, they maintain, lead inevitably to the exclusion of Beirne: 1st, from property acquired by the testator after the date of the will; 2d, from the lapsed legacies.
' According to their own view, it is a question purely and simply of Louisiana law—of the construction of Louisiana Statutes.
If we shall conclude that a construction of these statutes, founded on reason and sustained by jurisprudence, conforms the law of Louisiana, in these repects, to that of the enlightened countries and States first named, we shall at least feel safe that such conclusion will not presumably violate justice or policy.
The exceptional provisions of our law, chiefly relied on, are Articles 1722 and 1709 of the Civil Code.
- 1. Article 1722, which is relied on as confining the legacy to Beirne to the property possessed by the testator at the date of the will, is one of several Articles denominated by the Code itself as “ general rules for the interpretation of legacies.” Of these rules it was forcibly and truthfully said by Judge Host, that they are mere “ advices given to the Judge, landmarks they might be called, taking effect in the cases to which they apply, not so much ratione imperii as imperio rationis.' State vs. McDonough, 8 An. 252.
■ They are mere aids and guides in ascertaining the true intention of the testator, and are not entitled to that rigidity of domination, which seems to be claimed for them by counsel.
Article 1722, though excluded from the French Code, is a literal translation of the trigésima secunda regula of the Pandects. 11 Pothier’s Pandects, p. 538,
It is there said, in substance, that this rule has no application to universal legacies, which, from their nature, are susceptible of augmentation or diminution.
The same doctrine has been expressly held by this Court. Shane vs. Withers, 8 La. 489; Shaw vs. York, 5 An. 146.
The contrary has never been expressly held in any case.
- Succession of Valentine, 12 An. 286, which is relied upon as over^ ruling those cases, does not mention them, and is expressly based *723upon the “ peculiar phraseology of the will,” which evidently contemplated the property then possessed,- as appears from various clauses.
- Lawson vs. Lawson, 12 An. 604, is. of still less force, as, though the terms of the will are not given, it is stated that •‘the wife was a particular and not a universal legatee,” from which we infer that there was no universal legatee.
Shane vs. Withers has never been overruled. Why should we now overrule it ? It merely applies a limitation to Art. 1722, which was applied in the system from which it was taken, and it conforms our law, to this extent, to the systems which the experience of the most enlightened countries has adopted in the interpretation of testaments; It enforces the manifest intention of the testator in the present case; who made his will in expressed anticipation of death, and with the desire of disposing of“ all his wordly estate,” and not to die intestate' as to any portion thereof.
The residue of “ all his worldly estate,” did not cease to be the residue, because the constituent portions thereof changed.
- 2. The next important question, and perhaps the most difficult one in the case, is, whether a disposition in a will by which, after first bequeathing particular legacies only, the residue is bequeathed to a person, is a universal legacy.
So far as this question is concerned, the provisions of our Code, affecting it or bearing in any manner upon it, are identical with those of the French Code.
The French authorities are, therefore, entitled to their legitimate weight in its determination.
They are unanimous in support of the general proposition above stated; and their arguments in its favor seem to me irresistible. 4 Demolombe, No. 541; Troplong, No. 1783; Coin Delisle, p. 451, No. 8; 5 Toullier, No. 513; 4 St. Espes-Lescot, No. 1685; 7 Aubry and Kau, pp. 465-6.
■ This is fully conceded by the learned Judge a quo in his able opinion, and he professed his reluctance to adopt a theory differing from such eminent authorities; but he arrives at the conclusion that “ the jurisprudence of Louisiana does not conform in regard to the point at issue to the views expressed by these writers, and is much better founded in reason and supported by logic.”
I have carefully studied the cases in our reports on which he bases this opinion.
Compton vs. Prescott, 12 Rob. 56, was a case where the residuary bequest was preceded by a legacy under universal title.
Far from overruling, the opinion quotes, without dissent, the doc*724trine of the French jurists, “ that if.a testator, after making'a'particular legacy, gives the remainder of the estate to another legatee, the latter should be. considered a universal one; ” and proceeds to difference the case in hand from that doctrine. P. 66. /
Turner vs. Smith, 12 An. 417 and Deshotels vs. Soileau, 14 An. 745, rest entirely upon the authority of the foregoing case, and-give no reasons whatever.
Succession of Dougart, 30 An. 268, rests upon peculiar principles not involving the proposition under discussion.. ‘
In no case has this. Court ever advanced the .general proposition, that a residuary legacy, following ,ouly specific particular legacies-, is not universal in its character. The cases above quoted rest upon their own peculiar facts. It is not pretended, even by the French authors, that the general doctrine is without exceptions. On the contrary, after announcing the general principle, Coin Delisle says: “ Cependant, ‘les tribunaux n’ont pas toujours consideré comme un legs universel la disposition du restant des biens, aprés le paiement des autre legs. Us ont le pouvoir d’examiner si, dans la volontó du testateur, ces expressions ont eu pour objet de limiter le droit du légataire; et s’ils reconnaissent que telle est son intention, ils refusent au légataire du restante l’accroissement qui résulterait de la nullitó de certains legs particuliers, etc.” P. 451, No. 8. So says Marcadó on the subject: “Ce sont 1&, on le voit, des questions de fait, des appróeiations des circonstanees et d’intention, abandonnóes & la sagesse des magistrate.” . -' '
■ I am constrained to suppose that, in the cases referred to, the Court exercised this liberty, and did not intend to announce a general principle adverse to the French doctrine. And, indeed,: on examination of the particular facts presented in those cases, I see no reason to question their correctness. .- .
. On the other hand, I consider that Compton vs. Prescott impliedly recognizes the French doctrine, and in two other cases, this Court has expressly recognized it. Succession of Fisk, 3 An. 705; Majors vs. Esnault, 7 An. 51.
- For these reasons, I cannot concur in the opi-nion' of the District Judge that our jurisprudence has established an interpretation-of our Code adverse to that of the French commentators and courts, still less, one more conformable to reason and logic. it,.
If the general principle is applicable in any case, it is applicable to the will in this.
3. The next and final question is., whether legacies - which lapse enure to the benefit of the universal legatee or of the iegal heirs.
The claim of the universal legatee is sustained by a course of decision *725too inveterate to admit of question. Prevost vs. Martel, 10 Rob. 513; Majors vs. Esnault, 7 An. 51; Lebeau vs. Trudeau, 10 An. 165; Succession of Foucher, 18 An. 409; Hoover vs. York, 24 An. 375; Succession of Dougart, 30 An. 273.
Taken in connection with the foregoing propositions, this disposes of the case.
Articles 1706 and 1709 of the Code have no application, because they refer only to accretion, and this is not a question of that character, but rests oh the different doctrine that the universal legacy, by its nature, comprises everything which lias not been otherwise validly disposed of. 4 St. Espes-Lescot, Nos. 1313-14; Lebeau vs. Trudeau, 10 An. 164.
An additional reason is that, by the very nature of a universal Legacy, where the will only makes other particular bequests, no portion of the estate remains “undisposed of,” which is a condition precedent to the application'of Art. 1709, by its own express terms.
In on.e case, this Court said : “ by the death of the particular legatee during .the lifetime of the testatrix, her will, under Civil Code Art. 1690, would be read as if his name had never been mentioned in it, unless a different intention of the testatrix could be gathered from the face of the instrument” Succession of Poucher, 18 An. 409.
Reading Burnside’s will as if the lapsed legacies had never been written in it, there would be no doubt that Beirne would take all except the effective legacies.
I have thus undertaken to eviscerate the pivotal questions upon which this important litigation hinges, and to announce the course of independent reasoning and investigation by which I have reached the same conclusions announced in the chief opinion-just read, and there much more ably and elaborately sustained. Por these reasons, as, well as for those there stated, I concur in the decree herein. . ,
Rehearing refused.