#### SUCCESSION OF Anne Zemurray HAMMETT.

No. 4313.

Court of Appeal of Louisiana, Fourth Circuit.

April 5, 1971.

Dissenting Opinion April 19, 1971.

Rehearing Denied May 10, 1971.

Writ Granted June 21, 1971.

*250Edward J. Villere, New Orleans, for plaintiff-appellant.

Dufour, Levy, Marx, Lucas & Osborne, Leonard B. Levy, New Orleans, for defendant-appellee.

Before SAMUEL, LEMMON and GU-LOTTA, JJ.

SAMUEL, Judge.

Decedent left two olographic wills, the first dated April 30, 1959 and the second dated January 30, 1961. Both were probated, the second after litigation (Succession of Hammett, La.App., 183 So.2d 416). Subsequent the dative testamentary executor filed a tableau of distribution which was opposed by the administrator of the Succession of James H. Atkinson, a legatee in the will of January 30, 1961. In due course there was judgment homologating and approving the tableau and, in effect, dismissing the opposition. The Administrator of the Succession of Atkinson has prosecuted this appeal therefrom.

In this court appellant makes several complaints regarding prematurity of the filing of the tableau, insufficiency of information as to the exact estate on hand, how it was accumulated, what money had been received, what debts and taxes had been paid and how the proposed disbursements were computed. However, those complaints are only mentioned in brief and in argument. Our attention has not been called to any law, procedural or otherwise, which has been violated and it does not appear that appellant has been harmed by any of the matters concerning which he complains. Under these circumstances we deem it sufficient to say we have examined the record relative to those complaints and find no error therein.

Appellant's main contention is that the will of January 30, 1961 in effect revoked the will of April 30, 1959 in its entirety and, more particularly, revoked two of the legacies contained in the latter will, one to May Fletcher in the amount of $30,000 and the other to Margaret Ann Segleau in the amount of $5,000.

The two wills read as follows:

> “April 30, 1959

> This is my last will and testament. I hereby revoke any prior wills and also the revokable trust entered into by myself and the Hanover Bank. I leave to *251May Fletcher $30,000. I leave to Margaret Ann Segleau $5,000.

> The remainder of my estate I leave my husband Donald Hammett 50% and to my brother, Sam Zemurray 50%.

> Anne Pickering Zemurray Hammett.”

> “Jan. 30, 1961

> To whom it may concern,

> 75%vof all my^monetary, real estaste [sic] and stock holdings to Sam Zemur-ray III with James H. Atkinson as trustee to be held in trust at Sam’s discretion until Sam is 35 years old.

> 25% of all my monetary, real estaste [sic] and stock holding to James H. Atkinson.

> Donald Albert Hammett is no longer my husband and I leave him nothing.

> Anne Zemurray Hammett”

Citing LSA-C.C. Arts. 1712, 1715 and 1716 and Succession of Rolling, 229 La. 727, 86 So.2d 687, appellant argues that the words “monetary, real estate and stock holdings” as used in the will of January 30, 1961 (“75% of all my monetary, real estaste [sic] and stock holdings to Sam Zemurray III” and “25% of all my monetary, real estaste [sic] and stock holding to James H. Atkinson.”) should be interpreted as intended by the decedent to dispose of her entire estate, thereby revoking the specific bequests contained in the prior will by leaving all of her estate to Sam Ze-murray III and James H. Atkinson, because a layman ordinarily would use such words to describe the estate as a whole.

The Civil Code Articles upon which appellant relies read as follows:

> “In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.” LSA-C.C. Art. 1712.

> “When, 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.” LSA-C.C. Art. 1715.

> “A mistake in the name of an object bequeathed is of no moment, if it can be ascertained what the thing was which the testator intended to bequeath.” LSA-C.C. Art. 1716.

We note that a determination of the issue with which we are presented is controlled primarily by LSA-C.C. Art. 1693, which reads:

> “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.” LSA-C.C. Art. 1693.

We find the cited case, Succession of Rolling, is not apropos. Relying primarily on a bequest of “The remainder of my estate” which appeared in the posterior will, the court in *Rolling*concluded the second testament disposed of the testatrix’s entire estate and displayed an intention to revoke the prior will and codicil thereto. In the instant case the posterior will makes no disposition of the remainder of the estate. And applying the quoted articles to the facts of this case leads us to a conclusion contrary to appellant’s contention.

The usual meaning 1 of the words “monetary, real estate and stock holding” would *252not include use of those words for the purpose of describing the whole of an estate. “Real estate” and “stock” are words of common usage and are entirely clear; the former refers to land and other immovable property and the latter here certainly refers to corporation stock. Insofar as applicable here “monetary” is defined as: coin, money; of or relating to money; pecuniary.2 However, in the instant case we have more positive evidence that the testatrix herself did not intend to refer to her entire estate by the use of the words “monetary, real estate and stock holding”.

Included in the record before us is another document dated January 4, 1961 which was filed in evidence in the trial court. Although not probated3 it appears to have been drawn by the testatrix as her will and bears her signature. In that document she makes five separate bequests, of various percentages totaling 100% of her “monetary, real estate 4 and stock holdings” to several legatees and then further bequeaths her jewelry, her clothing and her “personal effects” to various other legatees. Thus it is quite clear the testatrix considered “monetary, real estate and stock holding” as only a part of her estate and did not intend her use of those words to refer to or include her entire estate.

Applying the above quoted Civil Code Article 1693, as the posterior will of January 30, 1961 does not expressly revoke the prior will dated April 30, 1959, and as the bequests to May Fletcher and Margaret Ann Segleau, which are contained in the prior testament, are not incompatible with, contrary to, or entirely different from the dispositions contained in the testament of January 30, 1961, those bequests were not annulled by the later will.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

1

. “In ascertaining the intention of the testator ‘the language of the will is generally to be understood in the ordinary popular meaning * * * ’ Succession of Price, 202 La. 842, 13 So.2d 240 (1943). See also Succession of Villa, 132 La. 714, 61 So. 765 (1913).” Succession of Mulqueeny, 248 La. 659, 181 So.2d 384.

2

. See Webster’s New International Dictionary, 3rd Edition (1961).

3

. The record before us contains only those portions which were stipulated as necessary for the record on appeal. It contains nothing regarding the document dated January 4, 1961 except that document itself. No complaint has been made relative to that document.

4

.In two instances spelling “estate” correctly, as was done in her April 30, 1959 will, and in three instances spelling it “estaste”, as in her January 30, 1961 testament.

LEMMON, JTudge

^dissenting in part).

The tableau of distribution approved by the majority treats “monetary, real estate and stock holdings” as including only the bank accounts and stocks listed in the inventory.

In my opinion the calculation of decedent’s “monetary, real estate and stock holdings” should also include the bonds (which comprise 90% of her estate), as well as stocks, as it appears clear to me that this was her testamentary intent.

I believe that courts should not rigidly apply technical meaning to terms without reference to the intention of the testator. The ordinary popular meaning of “monetary, real estate and stock holdings” to a layman with average knowledge of commercial terms could include bonds, and if the intention of the testator was to include bonds, this intention should prevail over a technical construction of this phrase. The effect to be given a bequest of stock therefore depends on the intention of the testator 1, as manifested by the circumstances surrounding the disposition.

*253In this case the inventory consisted the following: of

> Separate Property:

> Securities (all bonds) $101,841.50 Checking accounts 366.35

> Clothing 295.00

> Jewelry 4,309,70

> Total $106,812.55

> Community Property:

> Securities $ 1,700.00

> Checking accounts 4,881.25

> Automobile 200.00

> Furniture and related items 606.40

> Total $ 7,387.65

> Decedent's one-half interest $ 3,693.82

The determination of the testator’s intention as to “monetary, real estate and stock holdings” becomes clear when we examine the document (referred to by the majority) dated January 4, 1961 in the light of this inventory. In this document, written 26 days before the second will, testator divided among five persons her “monetary, real estate and stock holdings” in varying percentages. She then proceeded to make dispositions to various persons of her furniture, of her jewelry, of her clothing and of her personal effects.

She therefore made provision for every item except the automobile in the inventory of assets which existed at her death not long thereafter. She obviously intended to make disposition of everything of value and attempted to do so in minute detail. To conclude that she did not intend to dispose of the bonds, which comprised the vast majority of her estate, is to effectively give no meaning whatsoever to testator’s intentions.

Another important feature of the January 4, 1961 document is the provision “21⁄2% of my monetary, real estate and stock holdings to James Howard Atkinson to be dispensed in accordance with a list provided by me”. While the list does not form part of the record on appeal, the testator certainly did not intend to dispense, according to a list, 21⁄2% of virtually nothing.

In my opinion we can only give effect to testator’s bequest of “monetary, real estate and stock holdings” by holding that “monetary holdings” include bank accounts, which are not technically money but rather claims against a bank for money deposited less money withdrawn, and by holding that “stock holdings” include bonds. Otherwise, where the testator bequeathed 75% and 25% of her “monetary, real estate and stock holdings”, if strict and technical commercial terms are applied, her estate contained no money, no real estate and a negligible amount of stock.

Courts are called upon to interpret wills by giving significance to testamentary intent while not departing from proper signification of the terms of the testament.2 Where the intention of the testator is clear, as I believe is the case here, this intention should be fulfilled if not destructive to the overall terms of the testament.

Disposition in wills must be understood in the sense in which they can have effect, rather than that in which they can have none. LSA-C.C. art. 1713. Succession of Mulqueeny, 248 La. 659, 181 So.2d 384 (1965). In my opinion the interpretation of the terminology in question, as listed in the tableau of distribution approved by the majority, relegates the disposition to a meaningless gesture and does not give effect to the obvious intention of the testator.

I therefore dissent as to this part of the majority opinion.

I agree that the earlier will was not revoked in its entirety by the later will. However, while the legacies of $30,000.00 and $5,000.00 were not in themselves inconsistent with the legacy of “monetary, real estate and stock holdings” (as I interpret this language), the remaining assets of decedent’s succession are insufficient to pay $35,000.00 in special legacies.

*254I further note that the January 4, 1961 document was written, dated and signed in apparently the same handwriting as the two wills which were probated. This document further disposed of additional items, which raises further conflict. However, since mine is a minority view, it is of no consequence to discuss these additional problems.

1

. See, 96 C.J.S. Wills § 780, at page 191; DSA-C.C. arts. 1712,1715.

2

. LSA-C.C. art. 1712.