| La. | Dec 15, 1846
The judgment of the court was pronounced by
On the 27th of November, 1843, Abijdh Fisk made an olographic will containing the following legacy: “ I give, devise, and bequeath the sum of $5000 to Joseph II. Lyon, at present one of my clerks, as a gratuity for his faithful services.” On the 13th of April, 1845, this testator made a second will, in which he leaves the plaintiff another legacy, couched in these words : “ In the first place, let all my debts be. punctually paid, if there are any existing at my death. Secoudly, to Mr. Joseph H. Lyon, my faithful clerk, I give, devise and bequeath $2500.” Two or three hours before his death, the testator being in the full possession of his mental faculties, and remarkably collected, ordered his servant to hand him a paper that was in his coat-pocket, upon which Alvarez Fisk, his brother and residuary legatee, aided in searching for it, and, upon getting hold of the paper, he said: This is Abijah Fisk’s will; what shall I do with it? shall I destroy it? The testator replied: "No, keep it; the other is in the bank; keep both." Both were accordingly kept, and duly probated after the death of the testator. The plaintilf now seeks to recover the amount of the two legacies, and his claim is resisted by one of the executors, upon the ground that the legacy in the last will was a revocation of the legacy contained in the first. Judgment was rendered in his favor in the court below, and the defendants appealed.
Article 1686 of the Civil Code, under which the only question presented by this controversy is to be determined, is in these words: “ Posterior testaments, which do not in an express manner revoke the prior ones, annul in the latter only such of the dispositions there contained as are incompatible with the new ones, or contrary to them, or entirely different.”
A vast number of authorities, taken from the commentators on the Roman rand French laws, and from the decisions of the English courts, have been adduced on both sides, in support of the opposite interpretations put upon that article by the counsel. Analogies and distinctions drawn from those sources, would be entitled to much weight, if our own positive legislation had not, so far as it bears upon this controversy, placed the meaning of that article beyond all reasonable donbt. It is true that in Rome, and in France before the adoption of the NapolSon Code, Lhe rule on this subject was, “ Per secumdum testa-mentum wfirmaiur primum.” It is now universally admitted that, the law should establish no presumptions but such as are certain and infallible ; and that the presumption of the Roman law that, second wills are intended to revoke the first, was often contrary to truth; and, while on this subject, it may be observed that no case can be imagined, in which that presumption would do greater violence to truth than in the present. The last words of the testator — do not
But the ascertainment of the intention of the testator, is not necessary to the decision of this case. The law 21st, tit. 1st, Partida 6th, expressly provided that, where two wills had been made, the legacies contained in both, either for pious purposes, or given to the relations or friends of the deceased, should remain valid. It was a vexed question among commentators, whether, under an exception to the general rule, similar legacies were both valid under the Roman law. Under the Spanish law, says Gregorio Lopez, there can be no doubt of their validity. Tene ergo menti istam legem Partitarum expressé decidentem, legata primi testamenti deberi. Gregorio Lopez, on the law already cited. Such was the rule when, in 1808, the civil laws of Louisiana were revised and embodied in the old Code. In that Code is found, on the subject of the revocation of wills, the article which has since been transferred into the Louisiana Code, under number 1686. As was observed in relation to article 2412 in the case of the Bank of Louisiana v. Farrar, ante p. 49, that article contains no clause of repeal, and does not purport to make any change in the legislation of the country. It must therefore be considered as the embodiment of the laws and jurisprudence in pari materia, existing at the time.
"Where the revision and formation into a Code of the laws and jurisprudence of a country is effected without a clause of repeal, as was the case with the Code of 1808, we hold the rule of interpretation to be, as in cases of successive statutes, that the law does not favor a repeal by implication, unless the repugnance be quite plain; that tho Code must be confined to repealing as little as possible of the preceding laws ; that although a disposition of the Code may seem repugnant to some of those laws, that disposition must, if possible, have such construction, that it may not be a repeal of those laws by implication. We hold that the same rule is to govern, wdiere different powers given by the former laws and by the Code may well subsist together. Dwarris on Statutes, 4th Law Lib. p. 31.
The disposition of the Spanish law, giving to testators the power to make bequests to their friends by two different wills, may well subsist with the powers given to testators by the Code, and must therefore be viewed as explanatory of its meaning and intent. Such was the contemporaneous interpretation of those dispositions of law.
In the year 1819, two learned jurisconsults were appointed by law to translate into English that portion of the laws of the Partidas, which was considered as still in force. They inform us in their preface, that they translate no oilier; and the law 21st, of the tit. 1st, of the 6th Partida, already adverted to, is found entire in their translation, 2 Moreau & Carleton’s Part. p. 969.. That law and art. 1686 were both in force, from 1808 until the promulgation of the new Code. The disposition of the Spanish law was then repealed ; but that repeal could not, and did not affect the legal intendment of the article of the Code. If, notwithstanding that article, the two legacies would have been valid before the repeal took place, the testator in making them now has not violated the law, and it is the duty of his executors to pay them both.
Judgment affirmed.