If this were a case of first impression, I would be inclined to concur in the views *Page 661 expressed in the majority opinion. I find it difficult in considering the doctrine of accretion or survivorship in connection with the interpretation of wills to distinguish between a bequest of a thing to many legatees in equal portions and a bequest to two or more legatees to be divided in equal portions or share and share alike. In any case it would appear that the portion of each colegatee is assigned in the thing bequeathed and that the portion of the legacy so assigned is vested in each legatee separately, and that they can not acquire from each other by accretion or survivorship. Be that as it may, this Court, in a number of decisions, has held that a legacy of the character under review in this case is a conjoint and not a distributive legacy. These decisions are based on the distinction which the Court found to exist between a legacy in which the assignment of parts is made in disposing form and a legacy in which the assignment of parts is made in executory form. This, in my opinion, is a very refined distinction since in both cases the testator has designated the part each colegatee should receive.
The first case in which this Court was called upon to consider the question was the case of Parkinson v. McDonough, 4 Mart., N.S., 246, decided in 1826, and the last case in which the question was presented was the case of the Succession of Blossom, 194 La. 635, 194 So. 572, decided in 1940. In both cases the testamentary *Page 662 dispositions under review were held to be conjoint legacies. The cases holding to the same effect, decided by this Court in the period elapsing between respective dates of the decisions in the Parkinson case and the Succession of Blossom, are Lebeau v. Trudeau, 10 La.Ann. 164, decided in 1855, by a divided Court with a strong opinion handed down by one of the dissenting Justices; the Succession of Dupuy, 33 La.Ann. 277, decided in 1881; the Succession of Wilcox, by a divided Court, 165 La. 803,116 So. 192, decided in 1928; Succession of Maus, by a divided Court, 177 La. 822, 149 So. 466, decided in 1933.
In the Succession of Villa, 132 La. 714, 61 So. 765, decided in 1913, the Court, in line with the distinction recognized in the earlier cases, expressed the view that where the words of division apply to the gift itself the legacy is not conjoint, but where the words of the division apply only to the execution of the gift the legacy is conjoint.
There are also two cases in the Federal jurisprudence in which the question was presented. In Mackie v. Story, 93 U.S. 589,23 L.Ed. 986, in a Louisiana case arising in 1876, the Supreme Court of the United States, following the jurisprudence of Louisiana, held that a bequeath to two legatees of all the testator's property, to be divided equally between them, was a conjoint legacy. And in Waterman v. Canal-Louisiana Bank Trust Co., 186 F. 71, decided by the United States Circuit Court *Page 663 of Appeals, Fifth Circuit, in March, 1911, the Court held to be a conjoint legacy a bequest by which the executrix divided the residue of her estate between various charitable institutions in proportion to the amount of the special legacies made to those institutions respectively.
The only break in the long line of jurisprudence established by the cases to which I have referred occurred when the decision was rendered in the Succession of Schonekas, 155 La. 401,99 So. 345, 346, decided in 1924, by one of the divisions of this Court, composed of three judges, at the time the Court was divided into sections.
In the Succession of Schonekas, this Court held that the expression "share and share alike" was an assignment of parts to the colegatees of the thing bequeathed and, therefore, the legacy was not a conjoint legacy. The decision in the case, interpreting the words "share and share alike" appearing in wills, remained the law for a period of four years, or until the decision of this Court in the Succession of Wilcox by which it was impliedly overruled.
I subscribed to the majority opinion in the Succession of Wilcox, but voted for a rehearing and dissented from the refusal to grant the rehearing. See Succession of Wilcox, 165 La. 803,822, 116 So. 192. I was influenced to do this for two reasons. First, because I was not convinced of the correctness of our original opinion, and secondly, because in my view since the will of Mrs. Wilcox had been executed *Page 664 while the decision in the Succession of Schonekas represented the last word in the interpretation of the words "share and share alike" in wills, the decision in that case, whether correct or incorrect, should be adhered to so as to preserve the intention of the testatrix when she made her will and not to change the interpretation so as to defeat that intention when the will became executory on the death of the testatrix.
It is for the secondly assigned reason that I am compelled to dissent from the majority opinion in this case. It is true that the will of Frederick Lambert was executed on July 18, 1927, only a few months before the decision was rendered in the Succession of Wilcox on February 13, 1928, but I am not on that account in favor of reviving the decision in the Succession of Schonekas so as to bring the interpretation of the will in this case within the rule announced in that case, thereby overruling the decisions in the Succession of Wilcox, Succession of Maus and Succession of Blossom, which reinstated the rule of law as it existed in this State prior to the decision in the Succession of Schonekas and which have maintained the rule as thus reinstated for a period of eighteen years. I think it is perfectly safe to assume that during that period a number of persons have acted on those decisions as the settled law of this State and their inherent correctness or incorrectness in the abstract is of less importance than that the rule of property *Page 665 which they have established shall be constant and invariable. They reflect the rule of law existing at the time of the death of the testator and should be applied in the interpretation of his will.