1 La. 153 | La. | 1830
delivered the opinion of the court.
The plaintiff in this case intervened in a suit, which was pending before the court below, between'the defendants and the testamentary executors of the late Julien Poy-dras.
She claims that her daughter and pupil shall be admitted as one of the universal legatees of her grand uncle, who died, leaving a will or testament, by which his nephews and nieces are called to the inheritance of the greater portion of his succession, to take by equal shares.
The court of probates gave judgment against her pretensions, from which thepre-sent appeal was taken.
The clauses of the testament from which the intention of the deceased must be deduced are the preamble, and that by which the testator disposes of the generality of his property.
They are expressed in the terms following:—
After stating the place of his birth and his parentage, and that he was never married, the testator declares 11 Je me trouvc rd avoir ni “ ascendants ni descendants. Je rdai que des ne- “ veux et nieces, enfans de mes trots freres, Fran-(i gois,Godfroi et Claude Poydras, et de ma sceur {i ainée, qui se sont maries et du manage des- “ quels sont issus et existans mes susdits neneux et “ niecesP qui sont tons résidens en France á Vex- “ ception de mon neveu Benjamin Poydras, ha- “ hitant proprietaire de la Paroisse de la Pomte “ Coupée dans cet Flat de la LouisianeP
Immediately after this preamble, are found several specific legacies, and then the gen
tl r^'ous ^cs ^egs susdits que je mens d^tablir, “ prealablement payés et aquittés,je legue a mes a neveux et nieces existants et venus des maria- “ ges de mes trois freres et de masaeur susdtts & “ décédés, la generalité des biens de toute nature “ queje de laisserai au jour de mon décés en quel- “ que lieu qu’ils soient trouvés ou sitúes, les eta- “ blissant mes legataires universels, par portions 4‘ égales entre mes dits neveux 8f nieces
The evidence of the case shows that at the time of the decease of the testator, there were living or in existence, one nephew and eleven nieces, related to him in the first degree, children of his three brothers and one sister, also the present plaintiff, a niece in the second degree, who claims a part of the succession as representative of her father, whowas nephew to thedeceased JulienPoy-dras, and who died before the testator, and before the opening of his succession.
In support of the pretensions of the appellant, her counsel has attempted to introduce several general principles and rules, in relation to the interpretation of testaments, as established by the Roman,
In the 7th Partida, tit. 33, and Law 5, concerning the signification of words, the following rule is laid down, in relation to the interpretation of wills: — “Las palabras del u fazedor del testamento, deben ser inlen- “ didas manaente, assi como illas suenan, “ e non se debe él jugador partir del entende 41 miente dellas; fueras ende, quando pare- “ ciere ciertamente, que la voluntad del tes- “ tador fuera otra, que non suenan las pala- “ bros que están escritas''1
According to this rule, in ascertaining the intention of a testator, judges are not permitted to depart from the plain and literal meaning of the words used by him,
Menochius, in his Commeniarius de Pre-sumtionibus, conjecturis signis et indiciis, quae circa ultimas dispositiones,el volentates morientium versantur, in Boole 4, Presumption 94, No. 15, declares his opinion, that when, in the state or place (in civitate et loco} where the testator disposes of his property, there exists a law or statute, that words of a testament shall be understood, according to
Now, it appears to us, without doubt, that the whole context of these two clauses of the will, (which constitute the only part of the instrument applicable to the present contest,) limits the legacy to the children of his brothers and sister, who might be in existence at the time of the decease of the testator. The degree of relationship of the persons, to whom the testator intended to extend his beneficence, is fixed and certain, and beyond that degree it cannot be extended, even according to the most liberal interpretation,'authorized by the Roman and French laws, relating to testamentary dispositions.