47 So.2d 898

#### SUCCESSION OF MONTEGUT. MONTEGUT et al. v. ST. MARTIN et al.

No. 39146.

Dec. 9, 1949.

On Rehearing June 30, 1950.

Edwin E. Willis, of St. Martinsville, James P. Vial, of Hahnville, and Robert E. Baird, New Orleans, for appellants.

Melvin P. Barre and Rene R. Nicaud, of New Orleans, for defendants and appellees.

MOISE, Justice.

This case, involving the construction of a will written in French by Amelie Monte-gut under date of September 4, 1933, has been before this Court previously; and a decision was rendered (211 La. 112, 29 So.2d 583, 588) remanding it “for the restricted purpose of permitting the parties litigant (both appellees and appellants) to introduce evidence in proof of any and all circumstances which may aid in the discovery of the intention of the testatrix with reference to the controverted provision * * * ” of the will.

The will the subject of this controversy is translated as follows (211 La. at page 119, 29 So.2d-at page 585) :

> “September 4, 1933

> “Here is my Testament I leave one thousand dollars for masses and my expenses *1031of burial 15 hundred dollars for Amelie and Lise St Martin one thousand dollars for Emma Montegut. on.e thousand for Luden and his son Pat Montegut 5 hundred for Stephanie and Marie Montegut, 5 hundred for Celestine St Martin. 5 hundred for Charles St Martin 5 hundred for Stephen Montegut, 5 *hundred for settling my estate which I leave to Charles St Martin and to Pat Montegut, as the executor of my Testament*All that I leave at the home of Amelie and Lise St Martin is for them.

> “Amelie Montegut”

The issue herein involves the interpretation of that portion of the will which is italicized: whether the testatrix bequeathed “5 hundred” dollars to Charles St. Martin and Pat Montegut as remuneration for settling her estate, or whether she bequeathed “my estate.”

We incorporate by reference the statement of facts contained in the original opinion of this Court. On remand, the district judge, after having heard the additional testimony ordered by us to be introduced in evidence, found “that it was the intention of the testatrix to leave the balance of her estate to Charles St. Martin, Jr., and A. L. (Pat) Montegut and to name them her universal legatees.” He based this decision not only upon the evidence but also upon the “reasonable and natural presumption * * * that the testatrix intends to dispose of her entire estate and that she does not intend to die partly testate and partly intestate * * The three cases which are relied on in support of this presumption are Succession of Fertel, 208 La. 614, 23 So.2d 234; Succession of Blakemore, 43 La.Ann. 845, 9 So. 496; and Succession of McAuley, 29 La.Ann. 33, 35.

In the first of these cases we said (23 So.2d at page 238) : “When a will is executed, a reasonable and natural presumption is that the testator intends to dispose of his entire estate. There is no presumption that he intends to die intestate as to any part of his estate *when the language he uses will clearly carry the whole.”*(Italics mine.)

The facts in Succession of Fertel are not analogous to the present case. There the testatrix sought to disinherit one of her three children (and forced heirs), made a bequest of the usufruct of her estate to her husband and a bequest of what amounted to the naked ownership thereof to her other two forced heirs and a grandson, and then attempted to forbid any alienation or hypothecation of her properties for a certain period of time. The will whose provisions were attacked began with the words *“Everything I possess.”*(Italics mine.) Hence, there could be no doubt but that the testatrix did intend to dispose of all her property. Whether or not the disposition which she wished made could have been countenanced in law did not alter the fact that the testatrix in the Succession of Fer-tel did evidence an intent to bequeath “ev-* erything.”

*1033In the Succession of Blakemore a will made ten years before the testator’s death was claimed to be inoperative as to property acquired during those intervening ten years. There certain collateral heirs claimed that a bequest to one nephew of “one-half of real estate and one-half of the (perishable) [property]” and to another nephew of “the other half” was not a universal disposition, but a special or particular legacy, and it was in the refutation of that contention that the Court said, by way of obiter dicta: “ * * * of two interpretations, it selects that which saves from total intestacy.” 43 La.Ann. at page 850, 9 So. at page 497.

The Succession of McAuley is not in point, for the reason that a bequest was made therein, conditioned upon the happening of a future event. As the event did niot happen, the bequest fell. In pressing for a contraction of the will favourable to them, the contingent legatees attempted to transpose certain words in the contingent legacy, and the Court refused to permit such transposition, holding that the wishes of the testatrix were clearly and unequivocally expressed. The question of partial intestacy was not even involved, since the testatrix had completely disposed of her property, having inserted the contingent legacy merely as a possible alternative disposition.

In deciding a case the Court cannot be bound by isolated fragments of jurisprudence considered separate and apart from the circumstances of fact which evoked them. Nor are we bound by previous dicta which only relates in a general way to the issues at hand. The litterings of an appellate tribunal are not sacrosanct; rather, we are obliged to weigh them in the light of the express provisions of the Civil Code. As was said in the dissenting opinion in the Succession of Fertel (by Fournet, J.), “* * * a strict adherence to the law as written in the Revised Civil Code is the only safeguard that will ever avoid the continued vacillation by this court * * 23 So.2d at page 244.

Amelie Montegut bequeathed by will $7,-000.00 in cash legacies. The entire inventoried value of her estate amounted to $11,987.38, of which $5,025.00 represented the appraised value of the land, which she did not specifically bequeath, leaving thus $6,953.38 as the value of her movable property. It is a strange coincidence that this figure should so closely approximate the sum total of her legacies, but not so strange when we find from the record that the decedent was an astute business woman, who kept a close check on her business affairs and had a fairly accurate idea of what she was worth in terms of cash, stocks and bonds. When we consider all these circumstances, as well as the fact that she included two favorite nephews in the list of special legatees, we come to the conclusion that it was “5 hundred for settling my estate” which she intended to leave them additionally, and not a third bequest — of the estate itself.

*1035In cases of doubt that interpretal ion as to tile disposition of an estate should be adopted which would follow the legal order of distribution for the heirs. The sum total of the cash legacies made by her in her will approximates the value of the stocks, bonds and cash computed in the inventory of her estate. She was bound to know that she had land. One witness said that she complained that she had-no one to work the land; another said that she attended to her land operations herself. In the controversial provision of the testament the testatrix did not use the words “balance of my estate”, nor did she make any reference whatsoever to the land or the disposition of her land. Considering her will and the existence of the depression of 1933, we conclude that she evidently did not attach very much value to the land, and, we assume, neither did the defendants, for they waited a long time.between the probating of the will and the actual claiming of the lands through a judgment of court sending and putting them in possession. This was done when there was a probability that the land had value — minerals beneath the soil.

As shown from the cases above quoted, they are not analogous to the present situation. In each instance, the intent of the testator could be fairly ascertained from the language used within the four corners of the document itself. Our function as a court is to construe this.will as written, not to make another will by adding to the controversial provisions the words “balance of the estate” or by adding thereto the word “lands.” We must interpret what the testatrix said, not what we think she meant to say, because after all, that would be the operation of our minds, not hers.

In the case of Burthe v. Denis, 31 La. Ann. 568, 569, 570, our Court prescribed the polar star rules for interpretation of wills. They are:

“First — It is *the intention*of the testator which should be sought, and this should be deduced *primarily,*if possible, *from the will itself,*without resort to extrinsic circumstances.

“Second — 'If, from the terms made use of by the testator, his intention can not be ascertained, recourse must be had to all circumstances which may aid in the discovery of his intention.’ R.C.C. 1715. ******

“Third — Another important rule is, that in case of doubt, that interpretation *should be preferred*which will approximate closest to the legal order of distribution. This rule flows from the general principle that the law favors the distribution *which it itself provides,*and gives effect to the will of man only when that will is clearly expressed or fairly deducible.” (Italics mine.)

In that case the will of Mrs. Burthe, translated from the French, read as follows : “I institute for my universal legatees, conjointly, the children of my four deceased brothers, and in their default their descendants, by equal proportion in each branch.”

*1037The distribution there was close to half a million dollars and was made just as the law provided, had there been no will. A testator may be intestate as to all of his estate or as to only a part thereof. What we did in the Burthe case is a safe criterion to follow in this case. As the disposition of “lands” is not clearly expressed in the will, we will consider that no disposition has been made, and we should follow the “distribution of heirship which the law itself provides.”

For these reasons the judgment of the lower court of June 26, 1948, in favor of Charles St. Martin, Jr. and A. L. (Pat) Montegut, and against the plaintiffs, is reversed and set aside, and judgment is hereby rendered in favor of plaintiffs and against Charles St. Martin, Jr. and A. L. (Pat) Montegut, setting aside the judgment of possession dated May 26, 1944, and sending and putting the legal heirs of Amelie Montegut, deceased, in possession of the residue of her estate in the proportion and distribution which the law itself provides in case of intestacy, the defendants Charles St. Martin, Jr. and A. L. (Pat) Montegut to pay all costs.

HAWTHORNE, J., takes no part.

McCALEB, J., concurs in the decree.

HAMITER, Justice

(dissenting).

The law governing this case is announced and definitely settled in the opinion, of which I was the author, rendered on the previous hearing. 211 La. 112, 29 So.2d 583, 585.

In that opinion we demonstrated conclusively that from the whole language of the will the intention of the testatrix could not be determined with respect to the following disputed provision; “ * **** 5 cents pour regler ma succession que je laisse a Charles St Martin et a Pat Montegut, comme l’ecuteur de mon Testament

And we held that by reason of the ambiguity attending such provision, and pursuant to certain cited articles of our Civil Code and decisions in the jurisprudence of this state, extrinsic evidence should be resorted to in deciding the litigation. To accomplish this end we concluded: “ * * * For this reason the case will be remanded for the restricted purpose of permitting the parties litigant (both appellees and appellants) to introduce evidence in proof of any and all circumstances which may aid in the discovery of the intention of the testatrix with reference to the controverted provision, the evidence, of course, to be otherwise admissible and material. After it is introduced, the trial judge will render judgment, in accordance with law, based on both the new evidence and that heretofore received.”

In keeping with our mandate the district judge, on the remand, received further extrinsic evidence and considered it along with that theretofore introduced. Then, *1039following his consideration, he concluded that it was the intention of the testatrix to leave the disputed residue of her estate to Charles St. Martin, Jr.,'and A. L. (Pat) Montegut, and he recognized and decreed those persons to be the universal legatees of the decedent. His judgment, in part, reads: “It is therefore ordered, adjudged and decreed that there be judgment in favor of Charles St. Martin, Jr., and A. L. (Pat) Montegut, and against plaintiff dismissing their suit and maintaining the validity of the judgment of possession rendered herein on May 16, 1944, recognizing Charles St. Martin, Jr., and A. L. (Pat) Montegut as the residuary or universal legatees of the decedent, Amelie Montegut.”

In support of that conclusion and decree the district judge, in his well-considered written reasons for judgment, gives a thorough analysis of the evidence and announces his findings as follows:

“The will is subject to two interpretations. Either, as contended by the plaintiffs, the clause in question simply named Charles St. Martin, Jr., and A. L. (Pat) Montegut co-executors, left them Five Hundred and No/100 ($500.00) Dollars to settle the estate, and left the balance of the estate undevised to go to her legal heirs as the case of intestacy; or, as contended by the defendants, this clause left the entire residue of the Succession to Charles St. Martin, Jr., and A. L. (Pat) Montegut.

“On the original trial of the case prior to the decision of the Supreme Court, testimony was offered on behalf of defendants to show that the decedent had made statements shortly prior to her death that she had made her will and that she was leaving to some of her heirs and not to the others. Although this type of evidence was admitted by the Court at that time, no evidence of this kind was offered by the plaintiffs. After the case was remanded by the Supreme Court, the principal plaintiff, J. O. Montegut, for the first time testified that the decedent some months prior to her death asked him to take her to an Attorney for the purpose of advising her on the making of her will and that she stated in the presence of this plaintiff that she wished to make certain legacies and to leave the remainder of her estate as the law would provide. The attorney is dead and there is no supporting evidence to corroborate this self-serving narrative. Nor was any prior mention of this incident ever made to any of the other parties to this litigation. Under the circumstances, much weight cannot be attached to this testimony. In fact, this court is not of the opinion that its decision should be based upon any of the alleged oral statements of the decedent with reference to her will. Of far greater weight are the other extrinsic facts which cast light on her intent and are not as susceptible to the vagaries of human memory or desire.

“Upon the reopening of the case, five witnesses testified on behalf of the plaintiffs and fifteen on behalf of the defend*1041ants, Charles St. Martin, Jr., and A. L. (Pat) Montegut. The witnesses who testified on behalf of plaintiffs were the principal plaintiff, J. O. Montegut, his mother, Mrs. G. Ferdinand Montegut, Sr., his brother, C. F. Montegut, Jr., his sister, Mrs. Laurence Montegut Zeigler, (the latter two being co-plaintiffs) and one William Clemens, who testified in rebuttal, but who knew nothing of the relationship between decedent and defendants, Charles St. Martin, Jr., and A. L. (Pat) Montegut. There are eleven plaintiffs and nineteen nominal defendants whose interest were with the plaintiffs in that they would share as legal heirs in the residue if the plaintiffs’ position was sustained. Of those thirty legal heirs of the decedent, only the three mentioned took the stand in the support of the plaintiffs’ position or to rebut the strong evidence of the defendants, Charles St. Martin, Jr., and A. L. (Pat) Montegut, as to the close affection and relationship existing between them and the decedent. On the other hand ten of the witnesses who testified on behalf of Charles St. Martin, Jr., and A. L. (Pat) Montegut are legal heirs of the decedent who would share in the residue under plaintiffs’ construction of the will. Three of the witnesses for defendants are disinterested parties who knew the decedent intimately for many years.

“Although, as always, there is some conflict in the testimony, the clear preponderance of the evidence shows that Charles St. Martin, Jr., lived with the decedent from infancy to a few years preceding her death; that she reared, treated, and loved him as her son; and that this affection continued until the decedent’s death. Similarly, the clear preponderance of the evidence shows that the other defendant, A. L. (Pat) Montegut, until he attained twelve years of age, spent most of his time at the home of the decedent; that he would frequently after he had moved to the city of New Orleans, visit his aunt; that he was a favorite nephew; that she was very devoted to him and he to her and that he managed her financial affairs in New Orleans from 1928 to the date of her death. A review of the testimony in this case convinces the Court that a relationship alike to mother and child existed between decedent and Charles St. Martin, Jr., and that of Aunt and favorite nephew and confidante existed between decedent and A. L. (Pat) Montegut; that these two individuals were the closest to the decedent in her affection and that she had every reason to prefer them in her will and leave to them the balance of her property,

“Accepting the Supreme Court’s decision as to the ambiguity of the will and applying the established rule of law that the reasonable and natural presumption is that the testatrix intends to dispose of her entire estate and that she does not intend to die partly testate and partly intestate, Succession of Fertel, 208 La. 614, 23 So.2d 234; Succession of Blakemore, 43 La.Ann. 845, 9 So. 496; Succession of McAuley, 29 La.Ann. [33], 35; it is the judgment of *1043this Court, based on both the new evidence and that received prior to the Supreme Court’s decision, that it was the intention of the testatrix to leave the balance of her estate to Charles St. Martin, Jr., and A. L. (Pat) Montegut and to name them her universal legatees.”

From the foregoing it is clear that the instant appeal presents only questions of fact. This being true the findings and conclusion of the trial judge should not be disturbed unless they appear to be manifestly erroneous. From my study of the record I cannot say that error has been committed. The evidence, as I appreciate it, is as analyzed above; and it sustains amply, in my opinion, the findings and conclusion announced.

I respectfully dissent.

On Rehearing

FOURNET, Chief Justice.

As pointed out by this Court when this case was originally before us, Succession of Montegut, 211 La. 112, 29 So.2d 583, 585, this litigation requires the interpretation of the italicized portion of the last will and testament of Amelie Montegut, executed in olographic form and written in the French language, of which the following is a literal translation:

“Here is my Testament I leave one thousand dollars for masses and my expenses of burial 15 hundred dollars for Amelie and Lise St Martin one thousand dollars for Emma Montegut. One thousand for Lu-den and his son Pat Montegut 5 hundred for Stephanie and Marie Montegut, 5 hundred for Celestine St Martin. 5 hundred for Charles St Martin 5 hundred for Stephen Montegut, 5 *hundred for settling my estate which I leave to Charles St Martin and to Pat Montegut, as the executor of my Testament*All that I leave at the home of Amelie and Lise St Martin is for them.” (Italics ours)

In giving consideration to the problem posed, this court concluded that the clause was ambiguous, remanded the case “for the restricted purpose of permitting the parties litigant (both appellees and appellants) to introduce evidence in proof of any and all circumstances which may aid in the discovery of the intention of the testatrix with reference to the controverted provision, the evidence, of course, to be otherwise admissible' and material,” and directed the trial judge to render judgment in accordance with law based on both the new evidence and that theretofore received.

Following these instructions, additional evidence was introduced in the lower court by both parties. The substance of the evidence offered on the part of the defendants St. Martin and Montegut showed that they were bound by closer ties of association, love and affection with the decedent than were the plaintiffs. On behalf of the plaintiffs there was offered the testimony of plaintiff J. Oswald Montegut, who testified that upon an occasion when he was driving *1045his aunt (the decedent) home after a visit with his mother in the late summer of 1933, she requested him to stop by the home of Judge John B. Chenet; and that upon arrival there she sought the Judge’s advice, with a view to making a will; that the Judge advised her, in the presence of Oswald Montegut, that all she had to do was to date the document, write it in her own hand, listing the names of those to whom she wished to leave special bequests with the amounts opposite their names, and if she appointed an executor he would dispose of the remainder of her property according to law, then to sign it.

The trial judge, after giving consideration to the evidence and following what he termed the established rule of law *“that the reasonable and natural presumption is that the testatrix intends to dispose of her entire estate and that she does not intend to die partly testate and partly intestate,”*concluded that it was the intention of the testatrix to designate St. Martin and Montegut as her universal legatees and rendered judgment accordingly. (Italics ours.)

On an appeal taken from this judgment by the plaintiffs, this Court, after carefully analyzing the cases relied on by the district court to sustain what it termed the established rule of law above referred to, and showing that they were distinguishable from a factual standpoint and therefore not controlling, applied the rules for interpretation of wills enunciated by this Court in the case of Burthe v. Denis, 31 La.App. 568, i.e., that the intention of the testator should govern, such intention to be deduced primarily from the will itself, if possible; if not, by recourse to all circumstances which may aid in the discovery of such intention; and that in case of doubt, an interpretation should be preferred which will approximate most closely the legal order of distribution; and we then held that as the disposition of the residue of the estate of the testatrix was not clearly expressed in the will, it should be considered as not made. Accordingly, the judgment of the lower court was reversed and judgment was rendered in favor of plaintiffs, sending the legal heirs into possession of the estate of the decedent.

We granted a rehearing on the application of the defendants, in which they urged that we had given no consideration to any of the extrinsic evidence for which the case had been specifically remanded, and further that we had ignored the law of the case as established by the judgment of this court in its first opinion.

In deciding this case when it was originally before us, the author of the opinion, after first exhausting the possibility of arriving at the intention of the testatrix by giving consideration to other clauses in the will and to the language as a whole, pointing out that the holding in Succession of Williams, 132 La. 865, 61 So. 852, relied on by the plaintiffs, to the effect that when terms and dispositions are ambiguous, the *1047law favors that interpretation which causes an equal distribution, in the absence of a clearly expressed intention to dispose of the property otherwise, and Article 1717 of the Revised Civil Code, providing “If it can not be ascertained whether a greater or less quantity has been bequeathed, it must be decided for the least,” “clash head-on with the well-established concept referred to in Succession of Fertel, 208 La. 614, 23 So.2d 234,” [211 La. 112, 29 So.2d 587] concluded that the only avenue left open for ascertaining the real intention of the testatrix was to resort to extrinsic evidence as authorized under Articles 1714 and 1716, Revised Civil Code, as construed by this Court in Burthe v. Denis, supra.

Applying this rule of law, after having carefully examined the contents of the will as a whole together with all the evidence in the record, we are unable to conclude within any degree of reasonable certainty that it was the intention of the testatrix by the controversial clause in her will to make Charles St. Martin and A. L. (Pat) Montegut her universal legatees. The additional evidence offered by the defendants after the case was remanded throws no light on the intention of the testatrix in this matter, it only shows the close ties which existed between the testatrix and her two nephews, which she herself showed by leaving to each a legacy and making them the executors of her will, with recompense; nor does the testimony offered by J. Oswald Montegut, the plaintiff, help us, since it shows only that the testatrix received advice as to the procedure and form to be followed in making her will and cannot be said to disclose her intention. Further, the holding in the Fertel case, upon which the trial judge based his judgment, has no application here since it is predicated on the proposition that the language used in a will *“clearly carries the whole,”*while in the instant case the import of the language used not only fails to clearly dispose of the whole, but even after having considered all of the extrinsic evidence-such an intention cannot be reasonably eked out. Consequently we are left with-the question very much in the same condition as when it was here on first appeal;- and after a careful study and analysis of the will in its entirety, giving full consideration to all the evidence, we do not believe that it has been shown with a reasonable degree of certainty that it was the intention of the testatrix to make Charles St. Martin and A. L. (Pat) Montegut her universal legatees.

For the reasons assigned, our former decree rendered on December 9, 1949, is reinstated and made the final judgment of this Court.

Accordingly, the judgment of the lower-court is annulled and set aside, and it is. now ordered, adjudged and decréed that there be judgment in favor of the plaintiffs, *1049and against Charles St. Martin, Jr. and A. L. (Pat) Montegut, setting aside the ex parte judgment of the lower court dated May 16, 1944, placing them in possession of the estate of the decedent Amelie Monte-gut as her universal legatees; it is further ordered, adjudged and decreed that the legal heirs of the deceased be placed in possession of the residue of her estate in the proportion and distribution as the law directs in the case of intestacy; the defendants Charles St. Martin, Jr., and A. L. (Pat) Montegut to pay all costs.

HAMITER, J., dissents, adhering to the written reasons heretofore assigned by him.