The opinion of the Court was delivered by
Manning, J.
John Burnside died on June 29, 1881. Shortly thereafter his will was admitted to probate and was ordered to be executed. It begins thus:
New Orleans, April 28th, 1857.
I, John Burnside, being of sound mind and body, but mindful of the uncertainty of life, do by this my last Will and Testament, dispose of all my worldly estate, as follows :
Eighteen numbered clauses then follow, the first fifteen of which contain legacies to several persons and charitable institutions. The last three are in these words :
16. I do nominate and appoint Oliver Beirne, my late partner in trade', my sole executor to carry this, my last will, into full execution ; no security shall be exacted from said executor, Oliver Beirne, for the faithful discharge of the duties imposed on him by this, my last will and testament.
17. The residue of my property of every description—say stock in trade, promissory notes, accounts, my interest in the firm of J. Burnside & Co., stocks, etc., etc., etc., I bequeath to my executor, Oliver Beirne, subject to the payment of all my just and lawful debts, and the expenses incidental to my succession, as a token of my sincere regard for his uniform kindness and services rendered to me in early life.
18. At the end of twelve months after my demise, my executor, Oliver Beirne, will pay the bequests herein made, or as soon thereafter as possible.
John Burnside.
New Orleans, April 28,1857.
Oliver Beirne qualified as executor, and accepted the succession unconditionally. The Judge appointed Messrs. B. F. Jonas and Eobert Mott attorneys of absent heirs, and a rule was taken afterwards to vacate the appointment.
Interventions were filed on the part of Eobert B. Wilson, claiming to he a nephew and heir of the decease^, which seems to have been abandoned—by the attorneys of absent heirs on the part of such heirs as there might be, for whom it may concern, none being mentioned except [715]*715tlie claimant Wilson—and by special attorneys for the State, all of-which aver that Oliver Beirne can take under the will only the residuum of such property as the testator owned at the time of making his will, and that as to all property acquired by him subsequent thereto he died intestate, and such property is inherited by his heirs, or in default of heirs escheats to the State.
Legacies amounting to $138,000 have lapsed by the death of the legatees before the death of the testator, and it is contended on the one hand that these legacies enure to the benefit of the universal legatee, and on the other, to the heirs and in default of heirs, the State.
Mr. Burnside was never married. If any relations survive him, they are distant collaterals. At the time of making his will he owned but one piece of real estate, bequeathed to Nelson McStea therein, which he sold many years before his death. At his death the bulk of his property was real estate, consisting of a princely domain of nine sugar plantations and a costly residence and grounds in this city. During the larger part of a long and busy life he had been in trade. His whole fortune at the time of making the will was invested in his dry goods business, and notes, accounts, stocks and such like, and amounted then to two million dollars. His partner Mr. McStea estimates it at that Sum, much more he thinks than Mr. Burnside was worth when he died. The inventories of his estate aggregate within, a fraction of eleven hundred thousand dollars.
The cardinal rule for the interpretation of wills is to ascertain the intention of the testator, and it is a rule of universal jurisprudence. It has been called ‘the law’ of the instrument, the ‘sovereign guide’ to those who seek the meaning of the will, ‘ the pole star ’ whither all must look who would find that meaning, and as Coin-Delisle has it, the trail which the Judge should follow in all its turns and windings. And yet, this rule has been so cumbered by glosses, so abraded and fettered by conditions superimposed by judicial construction, and so perverted by narrow pedantry, that in some courts it has come to mean, not that the intention of the testator must be sought, but whether he had expressed that intention in technical language. And this is exemplified by the candor of Lord Ellenborough when he said, “ if I were asked my private opinion as to what the testator meant when he used the words ‘ effects,’ I must suppose he meant to convey all his property for the maintenance of his family,” but nevertheless he would not give effect to that meaning by his judgment.
The common law has a vocabulary, of which certain words are used to designate various kinds of estates, tenures, etc., the meaning of [716]*716which has been fixed for a time whereof the memory of man runneth not to the contrary. But to hold that a layman is supposed to know them, and do violence to his intention bjr construing them in their technical sense in an instrument, whereof the admitted .rule of construction is to ascertain his .intention, and thus to make them mean what he could not. have meant and what the Judge does not believe he meant, is not to follow that rule which all admit is the sovereign guide for interpreting a will. It is not quite fifty years since this Court held, only after grave debate and not with assured hearty conviction, that “ estate ” and “ succession ” might be considered as synonymous when employed by a man making his own will! Shane vs. Withers, 8 La. 489.
There can be no. doubt that John Burnside, when he wrote his will, intended to leave the residue of all property he then had to Oliver Beirne—in other words, he intended that Beirne should take his whole estate, subject only to the charges in the form of legacies. The will was made to avoid intestacy as to any part of his property, and had he died then, there could have been no question about the effect of the will.
Let us in the outset recognise the fact that the Code does not designate any words which must be employed to institute an heir, or to bequeath an universal legacy. It defines the latter simply as a testamentary disposition by which a testator gives to a person the whole of the property which he leaves at his decease. Rev. Civ. Code Art. 1606. It gives the name of legacy under a universal title to .that disposition by which a testator bequeaths a fixed proportion of his estate or all of a particular kind of property, or a fixed proportion of a particular kind, Ibid, Art. 1612, and then groups all others under one head in the class of legacies under a particular title. Ibid, Art. 1625.
It is not claimed that the bequest to Beirne is a legacy under an universal title. It certainly is not a legacy of specific property like the square of ground to McStea, or of a fixed sum of money like those to Andrew Beirne and others—“ a thing bequeathed,” in the language of the next article of the Code; and it is argued as evident that it is not a universal legacy because it is not a disposition of his whole property.
The words of the Code are not sacramental. It is not needful that a testamentary bequest shall be couched in the identical language of the Code, and if it is essential to constitute a universal legatee that all shall be given him without diminution, the only will by which such legatee could be named would be one which contained that disposition and no other.
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The opinion of the Court was delivered by
Manning, J.
John Burnside died on June 29, 1881. Shortly thereafter his will was admitted to probate and was ordered to be executed. It begins thus:
New Orleans, April 28th, 1857.
I, John Burnside, being of sound mind and body, but mindful of the uncertainty of life, do by this my last Will and Testament, dispose of all my worldly estate, as follows :
Eighteen numbered clauses then follow, the first fifteen of which contain legacies to several persons and charitable institutions. The last three are in these words :
16. I do nominate and appoint Oliver Beirne, my late partner in trade', my sole executor to carry this, my last will, into full execution ; no security shall be exacted from said executor, Oliver Beirne, for the faithful discharge of the duties imposed on him by this, my last will and testament.
17. The residue of my property of every description—say stock in trade, promissory notes, accounts, my interest in the firm of J. Burnside & Co., stocks, etc., etc., etc., I bequeath to my executor, Oliver Beirne, subject to the payment of all my just and lawful debts, and the expenses incidental to my succession, as a token of my sincere regard for his uniform kindness and services rendered to me in early life.
18. At the end of twelve months after my demise, my executor, Oliver Beirne, will pay the bequests herein made, or as soon thereafter as possible.
John Burnside.
New Orleans, April 28,1857.
Oliver Beirne qualified as executor, and accepted the succession unconditionally. The Judge appointed Messrs. B. F. Jonas and Eobert Mott attorneys of absent heirs, and a rule was taken afterwards to vacate the appointment.
Interventions were filed on the part of Eobert B. Wilson, claiming to he a nephew and heir of the decease^, which seems to have been abandoned—by the attorneys of absent heirs on the part of such heirs as there might be, for whom it may concern, none being mentioned except [715]*715tlie claimant Wilson—and by special attorneys for the State, all of-which aver that Oliver Beirne can take under the will only the residuum of such property as the testator owned at the time of making his will, and that as to all property acquired by him subsequent thereto he died intestate, and such property is inherited by his heirs, or in default of heirs escheats to the State.
Legacies amounting to $138,000 have lapsed by the death of the legatees before the death of the testator, and it is contended on the one hand that these legacies enure to the benefit of the universal legatee, and on the other, to the heirs and in default of heirs, the State.
Mr. Burnside was never married. If any relations survive him, they are distant collaterals. At the time of making his will he owned but one piece of real estate, bequeathed to Nelson McStea therein, which he sold many years before his death. At his death the bulk of his property was real estate, consisting of a princely domain of nine sugar plantations and a costly residence and grounds in this city. During the larger part of a long and busy life he had been in trade. His whole fortune at the time of making the will was invested in his dry goods business, and notes, accounts, stocks and such like, and amounted then to two million dollars. His partner Mr. McStea estimates it at that Sum, much more he thinks than Mr. Burnside was worth when he died. The inventories of his estate aggregate within, a fraction of eleven hundred thousand dollars.
The cardinal rule for the interpretation of wills is to ascertain the intention of the testator, and it is a rule of universal jurisprudence. It has been called ‘the law’ of the instrument, the ‘sovereign guide’ to those who seek the meaning of the will, ‘ the pole star ’ whither all must look who would find that meaning, and as Coin-Delisle has it, the trail which the Judge should follow in all its turns and windings. And yet, this rule has been so cumbered by glosses, so abraded and fettered by conditions superimposed by judicial construction, and so perverted by narrow pedantry, that in some courts it has come to mean, not that the intention of the testator must be sought, but whether he had expressed that intention in technical language. And this is exemplified by the candor of Lord Ellenborough when he said, “ if I were asked my private opinion as to what the testator meant when he used the words ‘ effects,’ I must suppose he meant to convey all his property for the maintenance of his family,” but nevertheless he would not give effect to that meaning by his judgment.
The common law has a vocabulary, of which certain words are used to designate various kinds of estates, tenures, etc., the meaning of [716]*716which has been fixed for a time whereof the memory of man runneth not to the contrary. But to hold that a layman is supposed to know them, and do violence to his intention bjr construing them in their technical sense in an instrument, whereof the admitted .rule of construction is to ascertain his .intention, and thus to make them mean what he could not. have meant and what the Judge does not believe he meant, is not to follow that rule which all admit is the sovereign guide for interpreting a will. It is not quite fifty years since this Court held, only after grave debate and not with assured hearty conviction, that “ estate ” and “ succession ” might be considered as synonymous when employed by a man making his own will! Shane vs. Withers, 8 La. 489.
There can be no. doubt that John Burnside, when he wrote his will, intended to leave the residue of all property he then had to Oliver Beirne—in other words, he intended that Beirne should take his whole estate, subject only to the charges in the form of legacies. The will was made to avoid intestacy as to any part of his property, and had he died then, there could have been no question about the effect of the will.
Let us in the outset recognise the fact that the Code does not designate any words which must be employed to institute an heir, or to bequeath an universal legacy. It defines the latter simply as a testamentary disposition by which a testator gives to a person the whole of the property which he leaves at his decease. Rev. Civ. Code Art. 1606. It gives the name of legacy under a universal title to .that disposition by which a testator bequeaths a fixed proportion of his estate or all of a particular kind of property, or a fixed proportion of a particular kind, Ibid, Art. 1612, and then groups all others under one head in the class of legacies under a particular title. Ibid, Art. 1625.
It is not claimed that the bequest to Beirne is a legacy under an universal title. It certainly is not a legacy of specific property like the square of ground to McStea, or of a fixed sum of money like those to Andrew Beirne and others—“ a thing bequeathed,” in the language of the next article of the Code; and it is argued as evident that it is not a universal legacy because it is not a disposition of his whole property.
The words of the Code are not sacramental. It is not needful that a testamentary bequest shall be couched in the identical language of the Code, and if it is essential to constitute a universal legatee that all shall be given him without diminution, the only will by which such legatee could be named would be one which contained that disposition and no other.
Demolombe considers the question in two aspects, whether the legacies which precede the disposition of the residue are under a particular or universal title, (and we are concerned here "only with the former) [717]*717and after stating .the arguments of preceding commentators says, the particular legacies which have been first made, not being of fractional parts of the whole—n1 ay ant pas fractions Vuniversálité—the legacy which follows will naturally embrace the entirety. 4 Donations et Testaments, Nos. 541-2. 3 Troplong Donations et Testaments, No. 1783.
The whole discussion of the French commentators upon this subject was before this Court in Compton vs. Prescott, 12 Rob. 56, and it was admitted there may be cases in which the legatee of the residue, or of the remainder of an estate, may claim as universal legatee, p. 66, and it was.later expressly adjudicated in Sue. of Fisk, 3 Ann. 705, wherein the Court, quoting Toullier—if a testator first give a particular legacy, * and then bequeath the surplus or residue of his estate to another, the latter will be an universal legatee—applies it as a rule of construction which controlled that case. It therefore follows that this is either an ■ . universal legacy, or it is a nondescript. When the Code divides all legacies into three classes, and a legacy is of such kind as to exclude it from two of them, it must be in the remaining class or not exist. But it would exist without classification. The testator’s disposition is therp, and effect must be given to it. It can be included in no other class but that of universal legacies.
This being ascertained, what is the effect of this legacy upon property acquired after making the will 1
The language of the testator is of the broadest and most comprehensive kind. In the exordium of the will he announces his intention to dispose of all his worldly estate, and after making a number of legacies then bequeaths the residue of his property of every description. Nothing is undisposed of. All his worldly estate of every description was intended to be passed by the will. What ground in law is there to defeat that intention 1 How dare a court disregard that intention, if it be assuredly ascertained ?
. The whole of one’s property—Vuniversálité—Rogron defines as a being or entity, distinct from and independent of the particular things of which it is composed, and therefore continues to exist although its constituent parts change. So Demolombe;—Vuniversálité, that is to say, this collective being which we call patrimony is susceptible of augmentation and diminution, and in its comprehensive meaning embraces all the property, movable and immovable, corporeal and incorporeal, known and unknown, present and future, of the testator. 4 Donations et Testaments, No. 531.
, It could scarcely be doubted that all the property of a testator of every kind would pass by such sweeping language as a general rule, [718]*718but there are facts and circumstances peculiar to this case which it is Said prevent its application.
The testator at his death had none of the property in kind he possessed when he made his will. Speaking in general terms, he owned nothing but personal property when he made his will, and he owned nothing but realty when he died. Besides, in bequeathing the residue of his property, it is said he limited it by enumerating what he intended to give as stocks, notes, etc.
Here is manifest that tendency to technical construction which de- - etroys the vital essence of a will, its life—the intention—in order to give undue effect to words of secondary importance, The testator’s estate then consisted of the kinds of property enumerated, and nothing else. He meant to give all—said so—and added words descriptive of what all was composed of then. The word “ say ” used by him is not a word of limitation, but of illustration. To give that clause -any other effect would be to make the notes, stocks, etc., the exclusive and special objects of the legacy, as if the testator had written, I bequeath my notes, stock, etc.j.and written nothing else. How can such meaning be extracted from expressions so significant as those used, for not content with saying that he disposed of the residue of his property, he adds, as if to shut out misconception, “ of every description 1 ”
No argument can be drawn from the pecuniary result of the change? in investments. It cannot be said the testator could not have intended to enrich Mr. Beirne to the extent he will be by this real estate. The property as it was when the testator selected him as the recipient Of his bounty was worth more than it is now. The constituent parts of the. universality have changed, but the collective being survives, and comprises all the worldly estate.
It is however contended that the law itself has imposed stringent rules which are imperative upon testators in making, and upon courts in interpreting wills, and that the terms in which dispositions must be couched are. set, and have an inexorable meaning assigued them. Thus, a disposition couched in terms present and past does not extend to that which comes afterwards—if couched in the future tense, it refers to the time of the death of the testator—if the terms express no time, the disposition refers to the time of making the will. Rev. Civ. Code, Arts. 1720 (1713), 1721 (1714), 1722 (1715).
It would be a calamity if men were fettered by an unbending and inflexible formula for their expressions when doing an act which iit our country is not infrequently done without assistance. And the funest consequences of such a rule would be vastly augmented by its discouragement of the wise practice of making wills in health and be[719]*719fore approaching dissolution. Men would be deterred from making wills until the possibility of making more acquisitions no longer existed, if there was danger of wills operating only upon property possessed at the time of making them.
In Shane vs. Withers, 8 La. 497, this Court refused to consider those rules applicable to universal legacies, ¿nd in Louisiana vs. McDonough, 8 Ann. 252, it was said that the enactment of these articles is not restrictive of the rules for the interpretation of testaments found in the body of the Civil law, and that all alike are landmarks to the Judge who must in every case exercise his discretion in applying these articles, ever bearing in mind that the least circumstance is at times sufficient to prevent their application.
Whatever may be the effect of these articles they cannot be considered as impinging the fundamental rule, formulated by the Code under the same division of general rules for the interpretation of legacies, which enacts that the intention of the testator must principally be endeavoured to be ascertained. Eev. Civ. Code, Art. 1712 (1705). They must be read along with the recognition of that controlling principle, and be construed in subordination to it.
No greater force was ever given to those articles until in the Sire, of Valentine, 12 Ann. 286, and Lawson’s case, Ibid. 603. The manner of treating the subject in those cases hardly implies that it received attention commensurate with its importance. A single sentence in the last case disposes of the matter contrary to the previously accepted view. We cannot follow those cases. They stand alone. They apply an inexorable rule which ought not to be applied unless an unambiguous law compels it, and the application is hostile to the spirit of our jurisprudence upon wills, and contrary to the express enactment of Art. 1712 (1705).
Our conclusion is that the will speaks as of the date of the death of the testator, and therefore carries the residue of all the property then owned by him, after deducting legacies.
One other question remains. To whom do the lapsed legacies fall ?
The law of accretion had given rise to perplexing discussions among the French legists, in which the disputants had revelled until they were lost in a maze of subtleties and refinements. Our Code put a quietus upon the continuance of these discussions here by inserting a prohibition of the existence of the right of accretion, except in two cases—for the benefit of legatees when the legacy is conjoint; or where it is to two or more persons of the same thing, which cannot be divided without deterioration. Eev. Civ. Code, Arts. 1706 (1699), 1707 (1700), 1708 (1701). The next Article provides that except in these [720]*720cases, every portion of the succession undisposed of, either because the testator has not bequeathed it, or because the person to whom it is bequeathed has not been able or willing to accept it, shall devolve upon the legitimate heirs. Ibid, Art. 1709 (1702). Note the traduction of this Article in the Code of 1808, Art. 197, t. 11, b. 3.-
It is confidently asserted these Articles are conclusive, but they have no application to the case before us, because it is not the right of accretion that is invoked by the universal legátee, but that other principle by which, as legatee of the whole, lie is invested with the right to whatever is not legally and validly given away.
The identical question in the case at bar was' presented to this Court in Prevost vs. Martel, 10 Rob. 512, where- quoting the last Article at length and others pertinent to the matter in hand, the Court say : “ it is clear therefore that there being no forced'heir, the universal legatee is bound to discharge all the legacies,- * * ■ and that in case of their failure, he should be entitled to take them as a part of the succession,” p. 518. The same principle was asserted in Major vs. Esnault, 7 Ann. 51, citing and approving the above case, and the whole subject was reviewed and reconsidered with the same result’in Lebeau vs. Trudeau, 10 Ann. 164.
In Sue. of Foucher, 18 Ann. 409, it was said it was optional with the testratrix, having no forced heirs, to bequeath to or withhold from-her relatives, and the construction must prevail that she desired the' property to be distributed among her instituted heirs, and that the will should be read as if the name of the legatee of the lapsed legacy had never been in it.
These were followed by Hoover vs. York, 24 Ann. 375, where the Court say, the lapse of a particular legacy, by reason of the incapacity of the legatee, enured to the benefit of the universal legatees, and not to the collateral heirs, p. 380. In the Suc. of Dougart, 30 Ann. 268, the Court cited Hoover vs. York, and said, if these parties are universal legatees, they profit by the caducity of legacies to the exclusion of the heirs at law-, p. 273, and this long line of uninterrupted and consistent ruling culminates in Suc. of Dupuy, 33 Ann. 277, where it was held that a legacy lapsing by the death of the legatee before the testator, enured to the benefit of the universal legatees, p. 282, thus’exhibiting a remarkable consensus of opinion upon this particular question, this Court having seven times affirmed the principle, and on each occasion with a different personnel of this Bench—seven courts, each differently constituted from the others. '
And why should it not be so ? The testator had formally and expressly disposed of all his estate, selecting a stranger in blood as the [721]*721object of Ills bounty, and thereby evincing his intention to put him in his own stead and place, to the exclusion of kindred. It is he that ought to take adempted legacies, they- being a-part, when caducity occurs, of the universality of the property. •
“ Ceci nous conduit á poser en principe certain et incontestable, comme nous l’avons. déjá énoncé, que dans le silence du testament, le legs universel profite de la nullité ou la caducitó des autres dispositions. C’est la consequence nécessaire de la1 définitiorí conteñué dans' notre article. Puisque le legs universel embrasse présenteme'nt ou éventuellement l’universalitó des Mens du défúnt, il faut reconnaítre que tout ce dont il n’a pas été valablement ou utilement disposé s’y trouve inévitablement compris. Ainsi deviennent forcóment la propriété du légataire ■ universel tous les objets que le testateur avait léguós a des tiers qui, pour une cause ou pour une autre, ne peuvent pas les recueillir.” . 4 Saintespes-Lescot, No. 1314.
An ingenious argument is made against the- principle of these decisions, and an attempt is made to break their force by the citation of Turner vs. Smith, 12 Ann. 417, wherein, it is said, the contrary rule is maintained, but the legacy there was under universal title,' as was also the case in Lewis vs. Williams, 14 Ann. 625, and Deshotels vs. Soileau, Ibid. 745. Even if it were conceded that they sustain the principle contended for, they could' not stand against the well considered opinions in the line of .cases already cited, for it will be observed this particular question is disposed of in those three cases curtly and without a solitary reason therefor.
It is therefore ordered and decreed that the judgment of the lower court maintaining the interventions of the ■ attorneys of' absent heirs and of the State, and decreeing the heirs of John Burnside, or in default of heirs, the State of Louisiana to be entitled' to the sums bequeathed to persons who died before the testator, is avoided and reversed, and that portion of the judgment which recognises Oliver Beirne as residuary, legatee of the testator* is amended,' in this; that the said Oliver Beirne is now adjudged to be the universal legatee of John Burnside, and as such that he is entitled to the whole estate of said testator, after deducting therefrom the aggregate amount of the particular legacies which have not lapsed by the death of the legatees before the death of the testator, and he is also recognised as the executor of said testator. And it is further ordered that the dismissal of said Oliver Beirne’s demand for the revocation of the order appointing attorneys for absent heirs is reversed, and his said demand is now maintained, the costs of appeal to be paid by the succession.