86 So. 786 | La. | 1920
Mrs. Nate McCan Greenlaw, whose succession is in dispute, was survived by her husband, Edward R. Greenlaw, her mother, Mrs. Mary G. Mason, two brothers, David C. and Charles P. McCan. and a sister, Mrs. Pannie McCan Cobb. David C. McCan died a few months after Mrs. Greenlaw’s death, and his succession is represented in this suit by an administrator, the Whitney-Central Trust & Savings Bank.
Mrs. Greenlaw teft a will, in which she bequeathed $25,000 to her husband and appointed him executor. ’The will contains no other bequest.
Although the exact value of the estate is not shown in the record, it appears to be far more than $100,000. It consists of real estate in New Orleans, stocks, bonds, promissory notes and accounts receivable, cash in bank, etc., all of which belonged to the separate estate of Mrs. Greenlaw. There was no property of the marital community.
The surviving husband, as executor, having collected more than $72,000 in cash, filed an account, in which he proposed to close the succession by paying the debts and reserving the special legacy of $25,000, and by dividing the remainder of the estate equally between' himself and the mother of his deceased wife.
The mother, Mrs. Mary G. McCan, acquiesced in the proposed settlement, except that she insisted that the estate, of which she should receive half, should include the amount of the legacy bequeathed to the surviving husband. In the alternative, that is, in the event the court should hold that the estate should not be divided equally between herself and the surviving husband of the deceased, Mrs. McCan claimed, as a forced heir of the deceased, one-third of the estate, including the amount of the legacy bequeathed to the surviving husband.
The brother and sister, and the administrator of the succession of the deceased brother, .of the deceased, Mrs. Greenlaw, opposed the settlement proposed by the executor, and opposed also the alternative demand of Mrs. McCan. These opponents contended that Mr. Greenlaw was not an heir of his deceased wife, and was therefore not entitled to receive anything from her succession except the legacy bequeathed to him; that the mother, Mrs. McCan, inherited only one-fourth, not one-third, of the estate; and that they, opponents, inherited three-fourths of the estate.
Judgment was rendered against the surviving husband, rejecting the settlement proposed by him as executor, and declaring that he did not inherit as an heir of his deceased wife, and was therefore not entitled to anything more than the legacy of $25,000. The alternative demand of Mrs. McCan was allowed, and she was therefore decreed entitled to one-third of the estate, including the amount of the legacy bequeathed to Mr. Greenlaw, but deducting the debts of the succession. The demand of the three other opponents, the brother and sister and the succession of the deceased brother of Mrs. Greenlaw, was allowed to the extent of two-thirds, instead of three-fourths of the estate, less two-thirds of the debts of the succession and less also the entire amount of the legacy bequeathed to the surviving husband of the deceased.
The executor and the brother and sister and the administrator of the succession of
The question in contest between the surviving mother and husband of the deceased, on the one side, and the brother and sister and the succession of the deceased brother of the deceased, Mrs. Greenlaw, on the other side, is whether the residue of the estate was inherited entirely by the surviving mother and husband of the deceased, in the proportion of one-half for each, or was inherited entirely by the surviving mother and brothers and sister of the deceased. It is not disputed that, if the surviving husband is an heir of the deceased, he is entitled to one half of the estate and the surviving mother the other half. On the other hand, if the surviving husband is not an heir, then the question in contest between the surviving mother, on the one side, and the brother and sister' and the succession of the deceased brother, on the other side, is whether the surviving mother inherited one-third and the surviving brothers and sister two-thirds, or the surviving mother inherited one-fourth and the surviving brothers and sister three-fourths, of the residue of the estate. If it should be decided that the surviving husband does not inherit any part of the separate estate of his deceased wife, we must then decide also the question whether the legacy of $25,000 shall be paid before dividing the residue between the surviving mother, on the one side, and the surviving brother and sister and the succession of the deceased brother, on the other side; for the surviving mother claims, in her alternative demand, that she is a forced heir and that therefore the legacy must not be taken out of her share of the estate, whether- she be entitled to one-third or only one-fourth.
The claim of the surviving husband that he inherited half of the estate is founded upon the last clause in Act No. 80 of 1916, p. 201, viz.:
“An act to amend and re-enact Act No. 57, approved Juno 29, 1910, entitled: ‘An act to amend and re-enact article 915 of the Revised Civil Code of 1870.’
“Section 1. Be it enacted by the General Assembly of the state, of Louisiana, that Act 57, approved June 29, 1910, entitled ‘An act to amend and re-enact article 915 of the Revised Civil Code of 1870,’ be amended and re-enacted so as to read as follows:
“Article 915. In all cases, when either husband or wife shall die, leaving no ascendants or descendants, and without having disposed by last will and testament, of his or her share of the community property, such undisposed of share shall be inherited by the survivor in full ownership. But in the event the deceased should leave descendants his or her estate shall be inherited by them in the manner now provided for by law. But should the deceased leave no descendants, but a father and [or] mother, or both, the estate shall be divided into two equal portions, one of which will go to the father and mother, or the survivor of them, and the other portion to the surviving spouse.
“Sec. 2. Be it further enacted, etc., that all laws or parts of laws in conflict or inconsistent with the present act be and the same are hereby repealed.”
The first sentence in the act of 1916 is an exact reproduction of the act of 1910. The amendment of 1916 consisted in adding the two sentences, each beginning with the word “but,” and in adding the second section.
Before it was amended by the act of 1910 (No. 57) article 915 of the Revised Civil Code (which article was originally enacted as section 1 of Act No. 152 of 1844) read as follows:
“Art. 915. In all cases, when either husband or wife shall die, leaving no ascendants or descendants, and without having disposed by last will and testament, of his or her share in the community property, such share shall*261 be held by the survivor in usufruct during his or her natural life.”
It is to be observed that the only change made by the amendment of 1910 was in substituting, for the words “held by the survivor in usufruct during his or her natural life,” the words “inherited by the survivor in full ownership.”
The title of Act 57 of 1910 was, as stated in the act of 1916, “An act to amend and re-enact article 915 of the Revised Civil Code of 1870.” Article 915 of the Code, both before and after the amendment of 1910, referred only to property of the marital community, not to the separate property of the deceased spouse.
Counsel for Mr. Greenlaw contend that the last sentence in the amending statute of 1916, viz. “But should the deceased leave no descendants, but a father and mother, or both,” etc., should be read as if it stood alone, and without reference to the first sentence, or statute amended. And they argue that, if so read, the word “estate,” in the last sentence in .the statute of 1916, would include the separate estate of the deceased spouse, as well as his or her share in the community estate. Counsel for the brother and sister, and for the succession of the deceased brother, of the deceased, Mrs. Green-law, contend that the last sentence in the amending statute of 1916, “But should the deceased leave no descendants, but a father and- mother, or both,” etc., must be read and construed with reference to the first sentence, or statute amended; and that, when so read and construed, the word “estate,” in the last sentence of the amending statute, means only the share of the deceased in the community estate. That construction is in strict accord with the context; for the last sentence, like the second sentence, is connected with the first sentence, or statute amended, by the conjunction “but” ; and the second and third sentences must therefore be read as a continuation Of the first sentence, or statute amended, the same as if these new clauses were separated by a semicolon, instead of a period. Undoubtedly, when read as a continuation of the first sentence, or statute amended, the word “estate,” in the last sentence of the amending statute of 1916, refers only to the community estate, not the separate estate of the deceased spouse; because the first sentence, which is only a reproduction of the statute amended, refers only to the community estate, not to the separate estate of the deceased spouse.
A study of the history and gradual evolution of the right of the surviving spouse, with regard to the share of the deceased spouse in the property of the marital community, leads to the conclusion that the statute of 1916 was intended to apply only to the community estate, not to the separate estate of a deceased husband or wife. Before the adoption of Act No. 152 of 1844 (the two sections of which were embodied as articles 915 and 916, respectively, in revising the Civil Code in 1870), the surviving spouse had no right of usufruct upon the share of the deceased spouse in the property of the marital community. The second section of Act 152 of 1844 (which section was embodied as article 916 in the Revised Civil Code) declared that, if the deceased husband or wife left issue of the marriage with the surviving spouse, and had not disposed by last will of his or her share in the community property, the surviving spouse should hold in usufruct during his or her lifetime such share of the community as might be inherited by the surviving issue of the marriage, which usufruct, however, should immediately cease if the surviving spouse should marry again.
The manifest purpose of the enactment of 1844, therefore, was to place the usufruct in favor of the surviving husband or wife of the deceased, not only upon such share of the community property as might be in
The hiatus in the first section of the Act No. 152 of 1844'also occurred in the first amending statute (Act No. 57 of 1910), by which the Legislature declared that a sur
It is very likely that the purpose of the amendment made by the Act No. 80 of 1916 was: First to leave in full force and effect article 916 of the Civil Code (which was originally the second section of Act No. 152 of 1844); and, second, to make some provision for the surviving husband or wife in a case such as Lehman v. Lehman and the Succession of Lee. Be that as it may, there is no reason to believe that the Legislature intended, by the amending statute of 1916, to extend the statute amended so as to allow a surviving husband or wife to inherit half of the separate estate of the deceased spouse, in the event of their being a surviving father or mother or both. To give the statute that construction would render the first and the last sentence altogether inconsistent and irreconcilable, because, according to the interpretation of the language of the first sentence, given in the Succession of Lee and in Lehman v. Lehman, the surviving husband or wife could not inherit anything — not even a share in the community property — if the deceased spouse should be survived by an ascendant heir more remote than the father or mother; and yet, under the last sentence of the statute, the surviving spouse would inherit one-half of the en
Our conclusion is that Act No. 80 of 1916 is not applicable to this case, because the
The question arises from the fact that article 1494 of the Code, if applied literally to this case, would seem inconsistent with article 904 and with the second paragraph of- article 911 of the Code.
Articles 90S and 904, in the section treating “Of Successions Falling to Ascendants,” are as follows:
“Art. 903 (899). If any one dies leaving no descendants, but a father and mother and brothers and sisters, or descendants of these last, the succession is divided into two equal portions, one of which goes to the father and mother, who divide it equally between them, the other to the brothers and sisters of the deceased, or their descendants, as is prescribed in the following section.
“Art. 904 (900). If the father or mother of the person who has died without issue, has died before him, the portion which would have been inherited by such deceased parent, according to the terms of the preceding article, will go to the brothers and sisters of the deceased, or to their descendants, in the manner directed by the following section.”
Article 911 (907), being the first article in the section treating “Of the Succession of Collaterals,” merely repeats, in substance, the provisions of articles 903 and 904, viz.:
“Art. 911 (907). If a person dies, leaving no descendants, and his father and mother survive, his brothers and sistez-s, or their descendants, only inherit half of his succession.
“If the father or the mother only survive, the brothers and sisters, or their descendants, inherit three-fourths of his succession.”
Articles 1493, 1494, and 1495, in the section treating “Of the Disposable Portion and the Legitime,” are as follows:
“Art. 1493 (1480). Donations inter vivos or mortis causa cannot exceed two-thirds of the property of the disposer, if he leaves, at his decease, a legitimate child; one-half, if he leaves two children; and one-third, if he leaves three or a greater number.
“Under the name of children are included descendants of whatever degree they be, it being understood that they are only counted for the child they represent.
“Art. 1494 (1481). Donations inter vivos or mortis causa cannot exceed two-thirds of the property, if the disposer, having no children, leave a father, mother or both.
“Art. 1495 (1482). In the cases prescribed by the two last preceding articles, the heirs are called forced heirs, because the donor cannot deprive them of the portion of his estate reserved for them by law, except in cases where he has a just cause to disinherit them.”
It is important to note that article 1494, which is relied upon by the surviving mother in this case, does not declare that the surviving mother or father, or both, shall inherit one-third of the estate of a deceased child, in a case where the deceased child has made a donation during his or her lifetime, or has left a will. The article merely declares, in negative terms, that a donation, made either during the lifetime of the donor or by a last will and testament, cannot exceed two-thirds of the property left by the donor at his or her death, if the donor, having no children, leaves a father or mother, or both. The article is not a prohibitory
This question was presented first in the case of Heirs of Cole v. Cole’s Executors, 7 Mart. (N. S.) 414. The deceased, Cole, had left a will giving his entire estate to his brother, and the only heirs at law were his brother and his mother. The case therefore came plainly within the provisions of article 1494 (then 1481) of the Code, if that article is applicable to' a testamentary succession in which the deceased leaves no descendant heir and leaves only one surviving parent and a brother or sister, or descendant of a brother or sister.. The question in the case was whether the disposable portion of the estate was three-fourths or only two-thirds. The ruling was that the disposable portion was three-fourths, because the surviving mother would not have inherited more than one-fourth of the es-state if there had been no will, and she was therefore not prejudiced by the will except to the extent to which it encroached upon the one-fourth which she would have inherited if there had been no will. That decision was rendered in 1829.
The question was presented again in tne case of Barbet v. Roth, 14 La. Ann. 381 (in 1859). The deceased, Mrs. Roth, left a will making her husband her universal legatee. Her mother was the only heir at law. She
Another case in which article 1494 (1481) would be applicable, and would make the disposable portion two-thirds of the estate, is a ease where both parents of the deceased survive him and inherit jointly with surviving brothers -and sisters or descendants of them, in which case the surviving parents would inherit one-half of the estate if there were no will; and, though the law permits their right of inheritance to be prejudiced to the extent of the difference between one-third and one-half of the estate, it does not permit their right of inheritance to be further prejudiced by the testator or donor.
The doctrine, therefore, of the two decisions, the one in the case of Heirs of Cole v. Cole’s Executors, and the other in the case of Barbet v. Roth, is simply this: The surviving fathér and mother of a deceased person are forced heirs for one-third of the estate in a case where the, surviving father and mother, or either of them, would inherit more than one-third if there were no will or donation; but an heir cannot be a forced heir to a greater extent than he or she would inherit as an heir at law if there were no will or donation. There would have been no doubt about the correctness of that doctrine, as announced in the two decisions referred to, except for the fact- that one of the justices, Mr. Justice Buchanan, in a concurring opinion in Barbet v. Roth, found fault with the opinion that had been delivered by Mr. Justice Porter in Heirs of Cole v. Cole’s Executors. The learned justice, in his concurring opinion in Bar-bet v. Roth, declared that it seemed to him that there was a very simple and obvious way of reconciling articles 899 (now 903) and 900 (now 904) with article 1481 (now 1494) of the Code, which was to consider the two articles first mentioned as a statute of distribution for intestate successions, and to consider the article last mentioned as a statute of distribution for testamentary successions. The learned justice, however, overlooked or ignored the fact that article 1494 (then 1481) expressly applies to donations inter vivos, as well as to testamentary sucees-' sions. He also overlooked or ignored the second paragraph of article 911 (then 907)' of the Code. It is impossible to reconcile arti
This question came before the court again in the Succession of Marks, 35 La. Ann. 993, decided in 18S3. The deceased, Marks, left a will, making his widow his universal legatee. 1-Iis heirs at law were his mother and his brothers and sisters. The mother sued to reduce the legacy to two-thirds of the estate, claiming that her legitime was one-third. Notwithstanding she would have inherited only one-fourth of the estate if there had been no will, the court allowed her claim for one-third of the estate. Chief Justice Bermudez, speaking for the court, adopted the concurring opinion, which had been delivered by Mr. Justice Buchanan in the case of Barbet v. Roth, and declared that article 904 (900) and the second paragraph of article 911 (907) were applicable only to an intestate succession, and that article 1494 (1481) was applicable to every testamentary succession in which the deceased was survived by his or her father or mother, even though the father or mother inherited jointly with brothers or sisters, and therefore inherited only a fourth of the estate.
There is one point upon which there can be no doubt of the correctness of the opinion delivered in the Succession of Marks, affirming the opinion expressed by Mr. Justice Buchanan in the Barbet Case; that is, that there is one condition under which article 904 and the second paragraph of article 911 of the Code are applicable, and under which condition article 1494 is not applicable; and there is another condition under which article 1494 is applicable' and article 904 and the last paragraph of article 911 are not applicable. But the question whether article 904 and the second paragraph of article 911 shall apply, or whether article 1494 shall apply, does not depend upon whether the succession is a testamentary succession or an intestate succession; for article 1494, according to its plain terms, is applicable as well to an intestate succession (if the deceased made an excessive donation during his lifetime) as to a testamentary succession. The question whether article 904 and the second paragraph of article 911 are applicable, or whether article 1494 is applicable, depends upon whether the surviving father or mother would inherit as an heir at law more or less than a third of the estate if there were no will.
The illogical and astounding consequence of the ruling in the Succession of Marks eame to light in the Succession of Jacobs, 104 La. 447, 29 South. 241. In that case, the testator left a will in which he bequeathed to his mother all that the law would have allowed her if there had been no will; that is, he gave her one-fourth of his entire estate. He bequeathed to his brother a special legacy of his interest in the capital stock in two' corporations, and bequeathed to his wife the remainder of his estate. He was survived by his wife, his mother, his brother, and four sisters. There was no descendant heir. The mother brought suit against the widow and brother of the deceased, to reduce the legacies to two-thirds of the estate, claiming that she was a forced heir to the extent of one-third. Notwithstanding she was an heir at law for only one-fourth of the estate, and notwithstanding the will gave her exactly what she would have inherited if there had been no will, and notwithstanding, therefore, the will did not prejudice her right of inheritance as an heir at law, the court allowed her demand for one-third of the estate. It appears that the learned writer of the opinion, in the Succession of Jacobs, overlooked the fact that
“It is useless for us to discuss what might have been the rights of parties had the terms of the will been different from what they are —in other words, discuss a case where the disposition made of his property by the deceased would have been identical with the disposition made by the law itself in the case of intestacy. We have to take the facts and the will as we find them.”
As far as the surviving mother was concerned, the disposition made of his property by the deceased, Jacobs, was identical with the disposition made by the law itself in the ease of intestacy, because the mother, inheriting jointly with a brother and with sisters of the deceased, would have inherited only one-fourth of the estate if there had been no will; that is, the identical interest which the will gave her.
Of course, if article 1494 of the Code stood alone, or if it should be read without reference to any other provision in the Code, there would be an implication that a surviving father or mother, in the absence of descendant heirs of the deceased, would inherit as a forced heir one-third of the estate of his or her deceased son or daughter, even in a case where the surviving father or mother would inherit jointly with brothers and sisters of the deceased. But article 1494 does not purport to contain all of the law on the subject of the right of inheritance of a surviving father or mother of a deceased person; and it cannot be construed as if it stood alone. It must be read in connection with other articles on the same subject. Article 17 of the Code admonishes us that laws in pari materia, or upon the same subject-matter, must be construed with reference to each other, so that what is clear'in one statute may be called in aid'to explain what is doubtful in another. It is not logical, in fact not possible, to construe article 1494 so as to make a surviving father or mother a forced heir for a larger proportion of an estate then the proportion for which the .surviving father or mother would be an heir at law if there were no will. We must consider, as if written in article 1494, the principle underlying the law whic-h limits the disposable portion of an estate ; and we must consider, particularly, as if written in article 1494, the provision expressed' in article 1502, ■ that the right of a forced heir to demand a reduction of an excessive donation, either inter vivos or mortis causa, is limited to that extent to which the donation prejudices the heir, by encroaching upon the share which he or she would inherit as an heir at law if there were no such donation. Above all, we must boar in mind the definition, and the simple. meaning, of the. term “legitime,” or “reserved portion.” It is defined in article 1498 of the Code, referring to the legitime or portion reserved for descendants, as “the legitimate portion of which the testator is forbidden to dispose to the prejudice of his descendants.” (The italics are ours.) Paraphrasing that definition, the legitime, or reserved portion, of a surviving father or mother of the testator, is “the legitimate portion of which the testator is forbidden to dispose to the prejudice of his father or mother.” The legitime, or reserved portion, therefore, does not include any of that portion of the testator’s estate which he may give away without prejudice to his child or father or mother; that is, without depriving such heir of any part of what he or she would inherit as an heir at law if there were no will. Bouvier defines the word legitime, as a civil law term, meaning “that portion of a parent’s estate of which he cannot disinherit his children without a legal cause.” Applied to a father or 'mother, the definition would be “that portion of a person’s estate of which he cannot dis
.“In the cases prescribed in the two last preceding articles [referring to article 1493, dealing with children, and article 1494, dealing with the father and mother of the deceased], the heirs are called ‘forced heirs,’ because the donor cannot deprive them of the portion of his estate reserved for them by law, except in cases where he has a just cause to disinherit them.”
As a corollary, the disposable portion of an estate is that portion of which the testator may disinherit his children or his father or mother without cause. How can it be said, then, that a will or donation disinherits, or prejudices, the father or mother of the testator or donor, unless the will or donation encroaches upon the share which the surviving father or mother would inherit if there were no will or donation? The terms “legitime” and “reserved portion” are used in the Code as synonymous or convertible terms. There is nothing technical in the words “reserved portion.” To reserve a portion of an estate to a particular person does not mean to give him a portion to which he would not be entitled without the so-called reservation. It means merely to maintain him, to the extent of the reservation, in whatever right he would have if the act done in contravention of the'reservation had. not been done. All of the articles of the Code on this subject are contained in chapter 3 of title 2, which chapter is entitled “Of the Disposable Portion, and of its Reduction in Case of Excess.” The chapter is composed of only two sections. The first section treats “Of the Disposable Portion and the Legitime.” The second section treats: “Of the Reduction of Dispositions Inter Vivos or Mortis Causa; of the Manner in Which It is Made; and of Its Effects/’ A careful reading of the headlines in this chapter, and a careful reading of .each one of the 26 articles in this chapter, being articles 1493 to 1518, inclusive, fails to disclose any implication that a forced heir shall inherit more, to the prejudice of an ordinary heir, in a testamentary succession, than the forced heir would inherit if there were no will or testament. Therefore it cannot be said, with reason, that article 1494 must be construed as having suppressed the provisions of article 904 and of the second paragraph of article 911, in the ease of a testamentary succession, where the testator has left no descendants and is survived by only one of his parents and by brothers or sisters or descendants of a brother or sister.
It was said in the opinion delivered in the Succession of Marks that the doctrine of the decision in Heirs of Cole v. Cole’s Executors, if adhered to, would “unmercifully expunge” from the' Code article 1494. But that is not a correct statement, because, as was pointed out in the majority opinion in Barbet v. Roth, article 1494 applies to every case in which the surviving parent or parents of the deceased would inherit more than a third of his estate if there were no will. In fact, article 1494 remains applicable to every case where the deceased person has undertaken, by donation either inter vivos or mortis causa, to dispose of such proportion of his estate as to encroach upon the proportion which a forced heir would inherit if there were no donation. Article 1494 would therefore be applicable to a case where the deceased person, having no descendant heirs, is survived by his father or mother, who inherits jointly with brothers and sisters of the deceased person, if the deceased person had undertaken, by donation either inter vivos or mortis causa, to dispose of such a proportion of his estate as would encroach upon the one-fourth share which the surviving father or mother would inherit if there were no donation. On the other hand, the interpretation adopted in the Succession
The theory announced by Mr. Justice Buchanan in his concurring opinion in the ease of Barbet v. Roth, that is, that article 904 and the second paragraph of article 911 were statutes of distribution only for intestate successions, and that article 1494 was a statute of distribution for testamentary successions, was exploded in the Succession of Desina, 123 La. 468, 49 South. 23. The deceased, Mrs. Carmelite Desina Kurucar, during her marriage, inherited from the succession of her mother $33,119, which was paid to her in checks. She immediately indorsed the checks and handed them to her husband, who deposited them in bank to his own credit. Mrs. Kurucar was then under the age of 16 years. She died within a year after she had received the cheeks. She had no children. Her heirs at law were her father, a brother, and two sisters. She did not leave a will. Her father and one of her sisters were appointed and qualified as administrators of the succession, and they obtained an order of court, compelling 'the surviving husband, F. R. Kurucar, to disclose all property and money belonging to the succession. He showed that he had $6,105 deposited in bank to his own credit, real estate which he had bought in his own name for 158,500, and stock in a corporation which he had bought in his own name for $3,500. ■ He claimed, however, that his deceased wife had donated to him, by manual gift, the checks representing $33,119, and that therefore the property which he had bought with part of that money, and the remaining cash in bank, belonged to him. The surviving father and brother and sisters of the deceased then brought suit to vindicate the title of her succession in the property and money claimed by the surviving husband. The plaintiffs air
“Hence, in the case at bar, the father has no interest in contesting the validity of donations, the existence of which vests in him a larger portion of his daughter’s estate than he would otherwise have inherited.”
It was not essential that the donation should have redounded to his advantage, in order to deprive him of a right to complain of it. It was sufficient, to deprive him of a right to complain, that the donation did not operate to his disadvantage or prejudice. As a matter of fact, it did not operate to his prejudice or disadvantage, except in so far as it encroached upon that proportion of the estate, being- one-fourth, which he would otherwise have inherited. 1-Iis right of action
We are constrained, however, to reject the doctrine on which alone was founded the decision in the Succession of Marks and Succession of Jacobs.
In a supplemental brief filed on behalf of the surviving mother, Mrs. Mary G. Mason, the following question is propounded, viz.:
“The fact that a portion of the estate has been bequeathed renders it impossible to make the division provided for in articles 903, 904, and 911 of the Revised Civil Code. How is it possible, for instance, to give the mother one-fourth and the brothers and sisters three-fourths of the estate when, already, under the will, a portion of the estate has been disposed of?”
Our answer is that the brothers and sister of the deceased are not forced heirs. They would have inherited three-fourths of the estate if the deceased had not left a will; but she was allowed to give away any or all of the three-fourths interest which woidd otherwise have been inherited by her brothers and sister. As to the surviving mother of the deceased, article 1505 of the Code explains that the disposable portion must be ■calculated^ upon the value of all of the property belonging to the donor or testator at the time of his death, including, of course, that which the testator undertook to dispose of by last will, and “to that is fictitiously added the property disposed of by donation inter vivos, according to its value at the time of the donor’s decease, in the state in which it was at the period of the donation,” from which total, of course, are deducted the debts due by the succession, before the legitime, or the disposable portion, is calculated. There is no necessity for such calculation in this case, because the legacy bequeathed by the will does not exceed the disposable portion. It must be paid from the portion of the estate which would otherwise have been inherited by the brothers and sister, who are not forced heirs, of the deceased.
It is ordered, adjudged, and decreed that the judgment appealed from be ámended so as to allow the surviving mother of the deceased only one-fourth, instead of one-third, of the remaining property and assets of the succession of the deceased, Mrs. Kate McCan Green-law, after deducting all debts of the succession, but including in the calculation of the fourth of said estate the $25,000 legacy bequeathed to the surviving husband, ana so as to allow the surviving brother and sister and the succession of the deceased brother of the deceased, Mrs. Greenlaw, each one-fourth-of the property and assets of the succession, after paying all debts of the succession, from which three-fourths interest inherited by the two brothers and the sister of the deceased is to be paid the special legacy of $25,000 to the surviving husband, Edward R. Greenlaw. In all other respects the judgment appealed from is affirmed at the cost of the succession.