| La. | Feb 15, 1855
Lead Opinion
This case presents a question of the right of accretion under a testamentary disposition made in favor of eight legatees, by the following will:
Je, soussigné, George Labeau, jouissantde toutes mes facultes intéllectuelles, voulant mettre ordre á mes affaires et faire connaitre mes derniéres volontés ainsi que los personnes auxquelles je legue mon bien.
Je vais parlor premiéroment do mes dettes. Je dois t, Mademoiselle Emma Bertrand, comme son tutcur, pour les droits héréditaires provenant do ses pére et mére, une somme de cinq cent vingt piastres, ci: $520. C’est á peu prés tout ce queje dois, hormis deux perils comptes de marchando.
Je déciare queje donne la liberté á mon petit négre nommé PéricUs ; il Tes-tera sous la surveillance &'Elizabeth Wilson, f. d. c. 1., jusqu’á l’áge de vingl-un ans, au cas que la dite Elizabeth viendrait á mourir, je le recommande aux
J’ai mentionné ci-dessus les noms des personnes auxquelles je légue tout mon bien, ce sont mes derniéres volontés. Je veux qu’elles soient respectées.-
Fausse Riviérc, 21 Juin 1858.
George Lebeau.
In the interpretation of this will, we are to search for the true intention of the testator, as deducible from the whole language of the instrument which he has framed to express his last wishes. If there be obscurity or doubt as to his meaning in any particular clause, we are to bring other clauses in juxta-position with it, and deduce, if possible, from all, an interpretation which will make them all harmonize.
Approaching the will before us in this spirit, I And no difficulty in discovering the true intention of the testator. I read the will thus : I desire to dispose by this will, of all that I possess, and In no respect to die intestate.' I wish my debts first paid ; I liberate my slave; I give all the residue of my property to Lezine Lebeau, Polixene Bertn'and, John Demoruelle, Emma Bertrand, John Bertrand, Elizabeth Wilson, Laure Grousard, L. E. Trudeau, to be equally divided among them. No one else is to participate in my estate. They are the persons to whom all my property is to be given. This is the true substance of the will, its unmistakable intention.
To say that by the failure of the legacy as to any one of these eight benefl-ciailes thus jointly constituted his universal legatees, any other person than they should profit, is to fly in the face of the testator’s clear and unequivocal intention* and surely sucha result-should not be permitted, unless there be some insuperable provision of law to override that intention. It is not suggested that it can be found any where but in Arts. 1699 and 1702 of our Code. Article 1700 declares, that accretions shall take place for the benefit of the legatees, in case of a legacy being made to several conjointly; and that the legacy shall be reputed te bo made conjointly, when it is made by one and the same disposition, without the testator’s having assigned the partof such co-lega-toe in the thing bequeathed. Article 1699 declares, that the right of accretion relative to testamentary dispositions, shall no longer subsist, except in the cases provided for in the Arts. 1699 and 1701. And Article 1702 declares that except in the cases prescribed in the two preceding Articles, every portion of the succession remaining undisposed of, either because the testator has not bequeathed it, either to a legatee or to an instituted heir, or because the heir or the legatee has not been able, or has not been willing to accept it, shall devolve upon the legitimate heirs.
Now here, the legacy is made by one and the same disposition. Is it made without the testator’s having assigned the part of each co-legatee in the thing bequeathed? I think it is.
“ The assigning of the parts of each co-legatee,” moans something more than is comprehended in the language of this will, which, according to my understanding of it, simply directs their participation of his whole estate in equal portions. I apprehend the terms used in the Code contemplate an express specification and assignment of the respective portions of the legatees, calling each to his particular part. But in the present case, there is not that specific
Judgment affirmed, with costs.
1, the undersigned, George Lébeau, in the enjoyment of my intellectual faculties, wishing to put my affairs in proper order, and to make my last will, and to make known the persons to whom I be-queathe ray property:
I will first mention my debts. I owe to Miss Emma Bertrand, being her tutor, by reason of her hereditary rights, growing out of the successions of her father and mother, the sum of $520. This is about all I owe, with the exception of two small accounts due merchants.
I declare that I give freedom to my young negro boy named PeHcles; he shall remain under the superintendancc of Elizabeth Wilson, i. c. w., until he shall attain the age of twenty-one years. In case that the said Elizabeth should die, I recommend him to the care of Madam Groussard, until he comes to his majority. After my debts paid, my property shall be divided, in equal portions, among the persons hereinafter named, that is to say, Lesine Lebeau, Polkcene Bertrand, John De-moradle, Emma Bertrand, Jean Bertrand, Elizabeth Wilson, Lanre Grousard, L.1L Trudeau.
I have hereinbefore mentioned the names of the persons to whom 3 bequeathe all my pi operty. these are my last testamentary dispositions. I will that they shall be respected.
Fausse Reviere, 21 Juen, 1S53. George Lebeau.
Dissenting Opinion
dissenting. Oeorge Lebeau died in the year 1854, leaving an olographic testament, which ivas admitted to probate and execution, and which contained the following clause :
“ Aprés mes dettes payees, mon bien sera partagé par portions ég'ales aux personnes ci-aprSs nominees, savoir; Leeine Lebeau, Polixene Bertrand, John Demoruelle, Emma Bertrand, Jean Bertrand, Elisabeth Wilson, Laure Gtrou-■sard, L. E. Trudeau
Tho heirs at law of George Lebeau, who are his brothers and sisters, and nephews and neices, bring this action, to set aside the will, as being invalid in law and in form. Their petition avers, that, even should the will be held to be valid in form, two of the legacies contained therein are illegal, to wit, the legacy of freedom to a slave named Pericles, and the legacy of one-eighth of the succession to Elisabeth Wilson, who was the concubine of the testator, and as such, incapable of receiving from him by a donation mortis causa. The heirs -also attack certain donations inter vivos made by tho deceased to the same Elizabeth.
The defendants, who are the legatees mentioned in the clause of the will copied above, have excepted that the heirs at law are without interest to attack the will, because, even supposing Elisabeth Wilson to be incapable of receiving from the deceased, her portion in this estate will belong, by accretion, to her seven co-legatees. This exception was maintained by the District Court, and the suit dismissed. The plaintiffs have appealed.
The first thing- which demands our attention, is a motion to dismiss the appeal, on tho grounds: 1st That the appellants, being married women, have not been authorized by their husbands to take the appeal.
2d. That certain parties interested in maintaining the judgment ajipealed from, have not been made parties to this appeal.
Neither of these grounds are tenable. There are many plaintiffs, and many •defendants in this suit. Only a portion of the latter have made any appearance Those who have appeared, have pleaded, separately, the exception abovemen-tioned.; which having been taken under advisement by the court, the parties, at the end of tho term, entered into a written agreement, “ that the Judge will, as soon as he has prepared his judgment on the exceptions of defendants, hand it to the Clerk of this court; that the judgment so rendered will have the same form as if rendered according to law in open court; and that, on furnishing a bond to the amount to. bo fixed by the court to answer for costs, the party cast will have tho right of taking the case on appeal to the Supreme -Court in New Orleans, on tho 4th Monday of January next, without notice and without petition of appeal, and citing tho appellees.” This agreement is the law of the parties who have signed it, and who are the same that move to dismiss the appeal.
It is not protended that the appeal bond given was not in conformity to the agreement. That bond is not signed by the married women who are mentioned
Proceeding to the decision of the appeal, as well taken, we find the point upon which the plaintiffs’ action has been dismissed by the court below, to be, the accretion of inheritance — a doctrine which, according to Toullier, (vol. 5,. No. 683,) “ passait avec raison pour la matióre la plus subtile et la plus épineusc du droit romain.”
The extent of this right of accretion, as it was recognized by at least a portion of the Roman jurists, was much circumscribed by the Articles 1044 and 1045 of the Code Napoleon, which are copied literally in the Articles 1700 and 1701 of the Louisiana Code. According to the former of those articles, accretion only takes place in favor of those co-legatees who are joined by name in one and the same clause of the will, without the testator’s having assigned the part or portion of each co-legatee in the thing bequeathed. Under this legislation, a legacy of a thing, or of all the testator’s estate, to several persons in equal portions, does not give rise to a right of accretion in favor of one or more of those persons, in case the rest should be incapable of inheriting. But in the construction of the Article 1044, the French courts have made a distinction, as'to whether the assignation depart is made by the testator in a disposing form,, •or in an executory form.
Thus, if the testator say, “I leave my estate to Peter, Paul and James, in •equal portions,” there is an assignation depart which precludes accretion; but if he says, “I leave my estate to Peter, Paul and James,.to be by them divided equally,” there is no assignation de part by the tesatorthis form of expression, implying that the legatees are to take the thing bequeathed in an undivided form, although it is in the contemplation of the testator, that they shall subsequently divide it equally among themselves. This distinction appears very refined; and Marcadé, (Explication du Code Civil,.Arts. 1044, 1045,) observes, thereupon, “ Comment veut-on qu’un marchand, un cultivateur, et méme tout homme du monde, apercoive une difference aussi capitale entre Je legue mes biens 4 Pierre et á Paul, chacun pour moité” et 11 Je légue mes biens á Pierre et á Paul, pour se les partager chacun par moitié” ? Est-ce que cette difference, si vraie qu’ellc puisse étre, no serait pas insaisissable pour les neuf dixiémes des citoyens.” In fact, the doctors of the French law are much divided upon the correctness of this distinction, sanctioned though it be by several decisions of the Court of Cassation. In citing these conflicting opinions, Mar-cadé joins Coin Delisle in refusing to adopt either, absolutely; but concludes that the intention of the testator, as to the assignment of portions in the legacy, is to be gathered from the context, as a guide for the application of the right of accretion. The District Court, proceeding upon the rule of construction laid down by Marcadé, has found in the commencement and in the close of the will of Lebeau, expressions of his intention to dispose of the whole of his prop
The expressions of the disposing clause are, “ aprés mes dettes payees, mon ¡bien sera partagé par portions égales aux personnes ci-aprés nominees,” etc.
It is very clear, from the context, that the words “ mon bien” mean all the property of the testator. This property shall be divided, says the will, in ■equal portions, after the payment of debts. The assignment of the portion is here direct — it is made by the testamentary disposition. It is not, to be sure, an assignment of so much money to one, or of such a farm to another, but it is a declaration what part each legatee shall receive, in a distribution to be made of the net estate — aux personnes ci-aprés nominees: not a partiton by the legatees among themselves, but an assignment of a portion to the legatees severally.
This is a very different form of expression from that which we find in the case of Ddaporte's will, cited by Toullier, Duranton and Marcadé. “ J’institue pour mes héritiers généraux et universels le sieur Plante et ses deux sceurs, mes trois neveux, pour par eux jouir et disposer de mon entiére hérédité, aprés mon décés, par portions égales, á leur volonté, en payant mes dettes.”
It should be observed also, in reference to the construction of the Articles 1700 and 1701, that our Code contains two articles, which are not found in the Code Napoleon, and which immediately precede and follow those two articles.
Articles 1699 declares, that the right of accretion relative to testamentary dispositions, shall no longer subsist, except in the cases provided in the two following articles:
Article 1702 says: “Except in the cases prescribed in the two preceding articles, every portion of the succession remaining undisposed of, either because the testator has not bequeathed it, or because the heir or the legatee has not been able, or has not been willing to accept it, shall devolve upon the heirs at law.”
. Had these articles existed in the Code Napoleon, we are not permitted to suppose that Marcadé would have maintained, as we find him doing, in opposition to Duranton and others, that the right of accretion of legacies was not limited to the'cases mentioned in Articles 1044 and 1045 of the French Code.
I think the judgment appealed from should be reversed.