(dissenting).
I agree with the views of the Court of Appeal (see Succession of Mulqueeny, 172 So.2d 326.) In Succession of Price, 202 La. 842, 13 So.2d 240, the Court said:
“The true rule in the interpretation of testaments is that ‘the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.’ Civil Code, Article 1712; Succession of McBurney, 165 La. 357, 115 So. 618; De *673laureal v. Roguet’s Succession, 177 La. 815, 149 So. 464. And, to ascertain that intention, the language of the will is generally to he understood in its ordinary popular meaning and without attending so much to the niceties of rules of grammar. Penny v. Christmas, 7 Rob. 481; Hasley v. Hasley, 25 La. Ann. 602.”
By applying this rule to the instant case, the resolution seems inescapable that the cash bequests to the three nieces of the testator cannot rightly be paid out of the proceeds derived from the homestead deposits for the testator, by specific and unequivocal language, bequeathed these homestead deposits to Miss Early.
It matters not, in my opinion, that the testator’s bequest of his interest in the joint homestead accounts standing in the name of the testator and Miss Early are not to be considered, under Succession of Berdon, 202 La. 607, 12 So.2d 654, as a gift of a particular object. Suffice it that, by the same authority, it is a legacy by a particular title —for this is all that it necessary to bring it within the codal rules governing particular legacies. See Articles 1605 and 1625 through 1643 of the Civil Code.
Under Article 1625, every legacy, not included in the definitions of universal legacies and those under a universal title, is a legacy under a particular title. And Article 1626 declares that the legatee under a particular title acquires the right to the thing bequeathed from the date of the testator’s death, which right may be transferred to his heirs and assigns. Thus, in the case at bar, regarding the legacy of the homestead stock as a gift of the deposits in the homesteads named in the will, it is clear under the law that Miss Early, as a particular legatee, became vested with an unencumbered right to these deposits at the moment of the testator’s death.
This was the clear intent expressed in the testator’s bequest and I can find no sanction in law for the Court’s refusal to honor it. True, it is regrettable that the three nieces, who were each willed $5,000 cash, cannot derive it from the corpus of the estate because there are no funds left after payment of the debts to discharge these legacies. But this unfortunate circumstance does not warrant the Court’s holding that these legacies must be paid out of the homestead deposits which were unconditionally and unequivocally bequeathed by a particular title to Miss Early.
In attempting to justify its action herein, the majority apparently conclude that, since there is no cash available to pay the legacies to the decedent’s nieces, there is something ambiguous about the will and that the testator surely intended that his nieces would receive his bequest. There is no doubt, of course, that the testator expected that he had or would leave at his death sufficient funds over and above his debts to pay these *675legacies. But the fact that there were not sufficient funds in the succession, apart from the legacy by a particular title to Miss Early of the homestead deposits, to discharge the legacies to the nieces does not supply a logical predicate for the deduction that the language of any of the-bequests contained in this will is ambiguous or justify the conclusions (argumentative at best) that the testator intended that his nieces be paid out of the particular legacy of his interest in the homestead deposits in favor of Miss Early. The testator did not say so and the resolution that this was his intent is rank speculation. My guess, from a reading of the will, is that his closest ties were with Miss Early and, if he could come back to announce his desires which he clearly set forth in his will, he would give her preference in all matters pertaining to his worldly goods.
In conclusion, I submit that the decision herein constitutes a re-writing of explicit and unequivocal bequests to conform with the Court’s conception of equity. This, I do not believe we have the right to do. Consequently, I respectfully dissent. .
PER CURIAM.
In two of the three applications for rehearing filed herein our attention has been directed to the fact that the majority opinion on the original hearing contained the clerical error that “Decedent’s estate consists of * * * Homestead Savings Accounts valued at $46,500 * * * As is shown by the inventory contained in the record the proper valuation of those accounts was $60,052.18. Therefore, the mentioned clerical error in the opinion is hereby corrected so as to disclose the proper valuation. (Italics ours)
All three applications for rehearing are denied.
McCALEB, J., dissents from the refusal of Miss Early’s application.