While I subscribe to the decree affirming the judgment appealed from, I must say that I have considerable doubt that the 7/9 of the estate, remaining after reserving to Barney Fertel the 2/9 to which he is entitled as a forced heir, should be distributed equally among the three legatees, namely, the two daughters and the grandson of the testatrix. If article 1501 of the Civil Code is applicable to this case, it seems that each of the two daughters of the testatrix should retain her legitime of 2/9 of the estate, besides receiving her 1/3 of the disposable portion, — that is, 1/3 of 1/3, — of the estate. In that way each of the daughters would receive what her mother bequeathed to her, being the 1/3, which each of them would have inherited if their mother had died intestate. Inasmuch as there is no doubt or dispute that Barney Fertel is entitled to 2/9 of the estate in spite of his mother's will, the only contest is between the two daughters of the testatrix, on the one side, and the grandson on the other side. And the only question at issue is whether the 2/9, which must be reserved for Barney Fertel, shall be deducted from the 1/3 which was bequeathed to the grandson, or shall be deducted pro rata from the three legacies, so as to leave to each legatee — to each daughter and to the grandson alike — 2/9 of the estate. No one is concerned in that contest except the two daughters of the testatrix, on the one side, and her grandson, on the other side. The two daughters, of course, are forced heirs of the testatrix; but the grandson, being the son of one of these daughters, is not an heir of his grandmother. *Page 639
Although the two daughters of the testatrix claim that each of them is entitled to retain her legitime of 2/9 of the estate, in addition to her legacy of 1/9 of the estate, the daughters do not rely upon or invoke article 1501 of the Civil Code. From this I infer that there is some reason, which is not quite clear to me, why this article does not give to the two daughters the same right to retain their legitime — in addition to receiving their share of the disposable portion which was bequeathed to them — that their brother has to demand his legitime. The article declares that the disposable portion of an estate may be given, in whole or in part, to one or more of the testator's children or successible descendents, "to the prejudice of his other children or successible descendants, without its being liable to be brought into the succession by the donee or legatee, provided it be expressly declared by the donor [testator] that this disposition is intended to be over and above the legitimate portion." There was no express declaration of an intention to exempt the legacies of the two daughters from being liable to a reduction if a contribution should become necessary to satisfy the demand of the other forced heir for the payment of his legitime. But the intention of the testator to give this advantage to her two daughters might be inferred from the fact that she actually bequeathed to each daughter her legitime plus 1/3 of the disposable portion of the estate, which — altogether — was exactly what each daughter would have inherited if the mother had died intestate. Hughes v. Hughes, 14 La.Ann. 85; Succession of Maltry, 161 La. 1032, 109 So. 827; Jordan v. Filmore, 167 La. 725, *Page 640 120 So. 275; Succession of Levy, 172 La. 602, 134 So. 906. Article 1231 of the Civil Code, having reference to collation of donations inter vivos, makes provisions similar to those of article 1501, referring to the reduction of donations or legacies exceeding the disposable portion of an estate; and article 1233 provides that the declaration that the gift is intended as an advantage or extra portion may be made, not necessarily in the words of article 1231, but "in other equivalent terms, provided they indicate, in an unequivocal manner, that such was the will of the donor." In the Succession of Levy, 172 La. 602, 134 So. 906, it was held that article 1233 was applicable as well to the provisions of article 1501 as to those of article 1231.
My doubt as to whether the judgment is correct in dividing the 7/9 of the estate equally among the three legatees, instead of giving to each daughter of the testatrix her 1/3 and giving to the grandson 1/9 of the estate, comes largely from the decisions in the following cases, referring to article 1501 of the Civil Code, namely: Hughes v. Hughes, 14 La.Ann. 85; Miller v. Miller,105 La. 257, 29 So. 802; Succession of Ledbetter, 147 La. 771, 85 So. 908; Succession of Maltry, 161 La. 1032, 109 So. 827; Jordan v. Filmore, 167 La. 725, 120 So. 275; Succession of Levy,172 La. 602, 134 So. 906; and the quotation from Delvincourt, vol. 2, p. 218, in Miller v. Miller, 105 La. 257, 263, 29 So. 802, 805.
The reason why it is impossible to know what the intention of the testatrix was as to how the 7/9 of her estate should be divided among the three legatees in the event *Page 641 that Barney should be allowed his legitime of 2/9 of the estate is that the testatrix had no thought of her son's being allowed 2/9 of the estate in spite of her will. What she intended, aside from giving Barney the $100 a month, was that her grandson should be substituted for Barney, as one of the heirs of her estate. She knew that she had only three heirs, namely, her two daughters and her son, and she must have known that each of them would inherit 1/3 of the estate if she left no will. But when she made her will she had no intention whatsoever as to how the 7/9 should be divided if Barney should demand 2/9, because she had no thought whatever of Barney's having a right to demand 2/9 of her estate in spite of her will. As we are obliged to dispose of the remaining 7/9 of the estate, one way or another, and as I cannot give any better reason why it should be disposed of otherwise I concur in the affirmance of the judgment appealed from.