| La. | Jun 15, 1837
delivered the opinion of the court.
In the year 1833, the late R. L. Dunoyer made his last will or testament by public act; by which, among other dispositions, he bequeathed to the present plaintiffs, his grand nephews and grand nieces, certain specific legacies in money; appointed Louis Filié his testamentary executor, and instituted several slaves, whom he emancipates by the same act his universal legatees. In 1835 he made another testament, also by public act, by which he also emancipates his slaves, and leaves them each, a small legacy; appoints R. Cazeaux, the present defendant, his hniversal legatee and testamentary executor, and makes no mention of his nephews and nieces, or of their legacies by the former will. This testament contains no express revocation of any previous one, and the present action is instituted to recover of the executor and universal legatee, the specific legacies under the former will. The only question, therefore, which this case presents for our solution is, whether the first testament has been tacitly revoked, so far as it concerns the particular legacies to the plaintiffs.
According,to article 1686 of our code, “posterior testaments, which do not in an express manner revoke the prior ones, annul in the latter only such of the dispositions therein contained as are incompatible with the new ones, or contrary to them, or entirely different.”
If there be any part of the second testament incompatible with the particular legacies contained in the first, it must be that part which constitutes the defendant the universal legatee. But when it is considered that the universal legatee is bound to discharge the particular legacies, and is in fact entitled only to the residium after the payment of legacies J r. i . . and debts, the apparent inconsistency vanishes. The opinion of Duranton is the other way, but the reasoning of that learned professor is not satisfactory to our minds. His argument seems to lose sight of the essential quality of a universal legacy, to wit: the obligation on the part of the legatee to comply with the wishes of the testator as it relates to particular legacies; and we do not see how, according to his argument, the particular legacies contained in the same testament would be compatible with the institution of a universal legatee, for he who gives all to one has nothing left to bestow on others. The mere substitution of Cazeaux in the place of the manumitted slaves of the testator as residuary legatee, and of Pilié as executor, does not in a legal sense evince a change of will, as it relates to his nephews and nieces. We are sensible, that to the great mass of the citizens it will appear absurd, that a man can leave two , ' . , , , . last wills in force. But we are to ascertain the probable intentions of testators, not by reference to the common received notions on these subjects, but according to the pro-J ° r visions of law, and must presume, however gross the fiction, that the testator knew the law and even its subtleties as well as, if not better, than a professor of the faculty of Paris.
Our view of the question is fortified by repeated decisions in France, under a similar provision in the Code Napoleon. Several of the Royal Courts concur in causes identically the same with this, in adopting the principles which we assume as the basis of our judgment. These are the highest courts which, according to the peculiar judicial organization in that country, could take cognizance of such a question, inasmuch as the Court of Cassation never receives the judgments of the inferior tribunals upon the merits of the controversy, as between the parties, any further than the judgment
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.