On Rehearing. In application for a rehearing, it is contended that this court erred in its original opinion and decree in holding (1) "that a testamentary bequest of a given number of shares of stock in a corporation entitles the legatee to a stock dividend declared by the corporation subsequent to the making of the will, but before the death of the *Page 321 testatrix", and (2) "that the testatrix intended to bequeath and did bequeath to appellant [Miss Spencer] the stock dividend".
In brief filed here, it is contended that this court in its majority opinion obscured the legal principle involved in stressing the value of the legacy, and that the beneficiary of a particular legacy of an incorporeal thing, such as a franc, a louis, a dollar, or a certificate of stock, is entitled only to the particular number of units specified in the bequest. In support of this contention, counsel say that, according to Pothier, Traite des Donations testamentaires, Chapter V, Section III, Article I, Subsection V, "* * * the legatee must have the benefit of any increase, or suffer any diminution which may happen to the thing bequeathed * * *." (As translated in appellees' brief.)
Counsel are in error in their assumption that this court stressed the value of the legacy in awarding the 40 shares to Miss Spencer. What this court said was that the subsequent conversion of the legacy into 40 shares of the increased capital stock of The Times-Picayune Publishing Company did not change the substance or value or identity of the incorporeal property which was bequeathed to Miss Spencer. In other words, we found that the stock certificates for 40 shares which Mrs. Quintero held at the time of her death constituted merely the evidence of the same incorporeal right which she had bequeathed to Miss Spencer and which was evidenced by 20 shares at the time the will was written. To state this succinctly, there was no increase *Page 322 or diminution in the thing bequeathed, as under our holding it remained the same in substance, value, and identity, and therefore the rule quoted from Pothier has no application.
The clause quoted above from Pothier is found under the topic: "In what condition must the thing bequeathed be delivered?" Immediately thereafter we find the statement: "The thing bequeathed, when it is a specific thing, must be delivered in the condition it was at the time of the delivery." (Italics ours.)
The specific thing bequeathed in this case was the interest of Mrs. Quintero in the capital stock of The Times-Picayune Publishing Company, which interest, as we have pointed out, was the same on the day of her death as at the time she made the will.
Counsel for appellees call our attention to Article 1722 of the Revised Civil Code, which provides that:
"A disposition, the terms of which express no time, neither past nor future, refers to the time of making the will.
"Thus, when the testator expresses simply that he bequeaths his plate to such a one, the plate that he possessed at the date of the will, is only included."
Counsel contend that, according to this article, Mrs. Quintero referred to only the 20 shares of stock which she owned at the time of making the will, and that consequently that limitation on the description of the stock is sufficient to exclude the stock *Page 323 dividend, and they argue that, this being true, the decision in Hicks v. Kerr, 132 Md. 693, 104 A. 426, 10 A.L.R. 1323, is applicable to this case.
We concede that this article would be applicable and would be sufficient to exclude the stock dividend under a holding that what Mrs. Quintero actually willed to Miss Spencer was the mere paper certificates for 20 shares of the capital stock of the corporation. But, as shown in the majority opinion, what the testatrix intended to bequeath was not the mere paper certificates for 20 shares of the capital stock but was the interest in the capital stock of the corporation which these shares represented, in this case evidenced on the date of the testatrix' death by certificates for 40 shares.
After a careful reconsideration of our original opinion, we are convinced that our decree rendered therein, ordering the testamentary executor to deliver to Miss Dorothy Spencer the three certificates representing the 40 shares of the capital stock of The Times-Picayune Publishing Company, is correct, and it is therefore ordered that our original decree be reinstated and made the final judgment of this court.
FOURNET, PONDER, and HAMITER, JJ., dissent.