Lebeau v. Trudeau

10 La. Ann. 164

Opinions

Slidell, 0. J.

This case presents a question of the right of accretion under a testamentary disposition made in favor of eight legatees, by the following will:

Footnotes

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Je, soussigné, George Labeau, jouissantde toutes mes facultes intéllectuelles, voulant mettre ordre á mes affaires et faire connaitre mes derniéres volontés ainsi que los personnes auxquelles je legue mon bien.

Je vais parlor premiéroment do mes dettes. Je dois t, Mademoiselle Emma Bertrand, comme son tutcur, pour les droits héréditaires provenant do ses pére et mére, une somme de cinq cent vingt piastres, ci: $520. C’est á peu prés tout ce queje dois, hormis deux perils comptes de marchando.

Je déciare queje donne la liberté á mon petit négre nommé PéricUs ; il Tes-tera sous la surveillance &'Elizabeth Wilson, f. d. c. 1., jusqu’á l’áge de vingl-un ans, au cas que la dite Elizabeth viendrait á mourir, je le recommande aux soins de Madame Grousard jusqu’á sa majorité. Aprés mes dettes payees mon bien sera partagé par portions égales aux personnes ci-aprés nommées savoir: Lezine Lebeau, Polixene Bertrand, John JDemonielle, Emma Bertrand, Jem Bertrand, Elizabeth Wilson, Laure Grousard, L. IT. Trudeau.

J’ai mentionné ci-dessus les noms des personnes auxquelles je légue tout mon bien, ce sont mes derniéres volontés. Je veux qu’elles soient respectées.-

Fausse Riviérc, 21 Juin 1858.

George Lebeau.

In the interpretation of this will, we are to search for the true intention of the testator, as deducible from the whole language of the instrument which he has framed to express his last wishes. If there be obscurity or doubt as to his meaning in any particular clause, we are to bring other clauses in juxta-position with it, and deduce, if possible, from all, an interpretation which will make them all harmonize.

Approaching the will before us in this spirit, I And no difficulty in discovering the true intention of the testator. I read the will thus : I desire to dispose by this will, of all that I possess, and In no respect to die intestate.' I wish my debts first paid ; I liberate my slave; I give all the residue of my property to Lezine Lebeau, Polixene Bertn'and, John Demoruelle, Emma Bertrand, John Bertrand, Elizabeth Wilson, Laure Grousard, L. E. Trudeau, to be equally divided among them. No one else is to participate in my estate. They are the persons to whom all my property is to be given. This is the true substance of the will, its unmistakable intention.

To say that by the failure of the legacy as to any one of these eight benefl-ciailes thus jointly constituted his universal legatees, any other person than they should profit, is to fly in the face of the testator’s clear and unequivocal intention* and surely sucha result-should not be permitted, unless there be some insuperable provision of law to override that intention. It is not suggested that it can be found any where but in Arts. 1699 and 1702 of our Code. Article 1700 declares, that accretions shall take place for the benefit of the legatees, in case of a legacy being made to several conjointly; and that the legacy shall be reputed te bo made conjointly, when it is made by one and the same disposition, without the testator’s having assigned the partof such co-lega-toe in the thing bequeathed. Article 1699 declares, that the right of accretion relative to testamentary dispositions, shall no longer subsist, except in the cases provided for in the Arts. 1699 and 1701. And Article 1702 declares that except in the cases prescribed in the two preceding Articles, every portion of the succession remaining undisposed of, either because the testator has not bequeathed it, either to a legatee or to an instituted heir, or because the heir or the legatee has not been able, or has not been willing to accept it, shall devolve upon the legitimate heirs.

Now here, the legacy is made by one and the same disposition. Is it made without the testator’s having assigned the part of each co-legatee in the thing bequeathed? I think it is.

“ The assigning of the parts of each co-legatee,” moans something more than is comprehended in the language of this will, which, according to my understanding of it, simply directs their participation of his whole estate in equal portions. I apprehend the terms used in the Code contemplate an express specification and assignment of the respective portions of the legatees, calling each to his particular part. But in the present case, there is not that specific and distinct assignment of the parts, which, in my judgment, is necessary to constitute a distinct legacy to each, of a distinct portion of the deceased’s fortune. lie appears to me, on the contrary, to have called them conjointly to partake equally in the totality of iris estate, and has mentioned the equality of their portions for the purpose of regulating the distribution of that totality. They are conjointly his universal legatees.

Judgment affirmed, with costs.

Mr. Justice Ogden, and Mr. Justice Spoeeoed, concurring.

1, the undersigned, George Lébeau, in the enjoyment of my intellectual faculties, wishing to put my affairs in proper order, and to make my last will, and to make known the persons to whom I be-queathe ray property:

I will first mention my debts. I owe to Miss Emma Bertrand, being her tutor, by reason of her hereditary rights, growing out of the successions of her father and mother, the sum of $520. This is about all I owe, with the exception of two small accounts due merchants.

I declare that I give freedom to my young negro boy named PeHcles; he shall remain under the superintendancc of Elizabeth Wilson, i. c. w., until he shall attain the age of twenty-one years. In case that the said Elizabeth should die, I recommend him to the care of Madam Groussard, until he comes to his majority. After my debts paid, my property shall be divided, in equal portions, among the persons hereinafter named, that is to say, Lesine Lebeau, Polkcene Bertrand, John De-moradle, Emma Bertrand, Jean Bertrand, Elizabeth Wilson, Lanre Grousard, L.1L Trudeau.

I have hereinbefore mentioned the names of the persons to whom 3 bequeathe all my pi operty. these are my last testamentary dispositions. I will that they shall be respected.

Fausse Reviere, 21 Juen, 1S53. George Lebeau.