
    No. 11,858.
    Succession of Dr. Eugene Rabasse.
    The heir of the executor is not bound to pay the mortgage debt placed by the tea tator on the thing bequeathed,», e. the special mortgage, unless that payment by the heir or executor is directed by the will. Civil Code, Art. 1638,1Í41,1142,1443 1444; 3 An. 175; 34 An. 709; 43 An. 144.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.
    
    
      L. de Porter for Plaintiff in Rule, Appellee, cites:
    O. C. 1430, 1431, 1642, 1440, 1434, 1634, 1636; 5 An. 199; 12 An. 5; 8 An. 142; Marcadé, Yol. 4, Donations et Testaments, pp. 97, 102, 103; Marcadé, Vol. 3, des Successions, pp. 259, 270, 271 and 94; Code Napoleon, Arts. 871, 874, 1020, 1024, 1018; Art. 226 Code of 1808; Art. 1383 Code of 1825.
    
      Henry Ohiappella, J. Numa Augustin, and Theodule Buis son for Appellants, cite:
    R. C. C. 1638, 1440, 1441, 1442, 1443, 1642, 1430, 1434, 2161, 3410; C. N. 871, 873, 874, 1020; Succession of Sinnott, 3 An. 175; Succession of Coste, 43 An. 144; Eskridge vs. Farrar, 34 An. 709; 3 Chabot Successions, 274,242; Rogron Code Annoté, pp. 211, 213,249; Paillet, pp. 341, 425; 2 Lacantinerie, pp. 425,430; 1 Boileux, 659, 660; Favard-Langlade, 406, 274; 2 Troplong Testaments, 556, 178; 16 Merlin Réportoire, 816, 512; 1 Grenier Testament, 177, 561; Ooin-Delisle Testaments, 477; Code Cvili Annoté par Lahaye, 376, 459.
    At the trial His Honor the Chief Justice propounded to counsel whether the work and report of the jurists who framed the Code of 1825 had been consulted, and how .far it threw light on the apparent inconsistency between Art. 1434 R. C. C. and the four articles 1440-1443 R. O. C. They have been fortunate in finding a copy in the French language of the “ Additions and Amendments to the Civil Code of Louisiana” proposed by the commissioners in 1824, the greater part of which were incorporated in the Code of 1825.
    
      It has been said in argument that onr present Articles 1434 and 1638 correspond to Articles 874 and 1020 respectively of the Oode Napoleon. They are also found in our Oode of 1808, being Art. 226, at page 200, under the heading “ Payment of Debts,” and Art. 146, at page 240, under the heading “Legacies” — the phraseology not differing to any great extent. It is well known that Arts. 1440, 1441, 1442,1443 are new articles inserted in the Oode of 1825, and not existing in either the Oode of 1808 or in the Oode Napoleon. The idea readily suggests itself that the framers of the Code intended to inject into our legislation, in emphatic and clear language, the principle that the particular legatee should take the legacy cumonere and without recourse against the heirs. They were led to this course because they had found the French commentators puzzled as to the proper mode of reconciling Arts. 874 and 1020 of the Oode Napoleon. They thought that they had set the matter at rest. But the doomed Art. 1434, like Banquo’s ghost, now rises again from its unsealed grave to disturb our 'councils.
    What is the language used by these eminent jurists in their report to the Legislature? After suggesting that Art. 228 of the Oóde of 1808 (which is our Art. 1436 R. O. O.) be followed by seven new articles (our present Arts. 1437, 1438, 1439, 1440, 1441, 1442, 1443), they add by way of note or remark as follows:
    “The dispositions contained in these articles are amendments to Art. 226 of the Oode, which we have suppressed above. Such article in granting to the particular legatee, who pays by reason of the hypothecary action, recourse against the heirs of the testator, is in contradiction with Art. 146 of Donations and Testaments, which says that the heirs are not bound to discharge the thing bequeathed of the incumbrance placed upon it by the testator. We have thought proper to correct this disposition, in conformity with the opinion of the best authors, who would have it that in such cases the legatee has no recourse against the heirs, but on the contrary, the latter may have recourse against him, whenever they would discharge the mortgage subject to which was the bequeathed immovable.” (Translation by the counsel.)
    Amendments to Oode of Louisiana, pp. 196, 197.
    If thus appears from the lips of these compilers or framers of our laws that they had suppressed Art. 226 of the Oode of 1808 (R. C. C. 1434.) Yet it found its way again in our Code of 1825— alongside of its new neighbors and opponents — as if it had not been abrogated. Was this an oversight and a clerical error? Or will it be said that the Legislature disregarded and repudiated the proposed innovation suggested by the jurists? How then could' the Legislature have agreed to adopt their recommendations in regard to the four new articles to be inserted in our Code. Then comes the codification of 1870 with all these articles re-enacted totidem verbis.
    
    An explanation which is plausible would limit the application of Arts. 1440, 1443, to particular legatees who are not heirs of the deceased testator; and so of Art. 1638. And on the other hand, Art. 1434 and the one preceding it, as well as the five succeeding it, would have reference to particular legatees who are also heirs of the testator. The reason of this distinction is to be found in the equality which must exist between co-heirs. It should be here remarked that Art. 1440 — the first of the four articles treating of legatees who are not also heirs — says: ‘ ‘ If a property which is bequeathed to any one has been mortgaged,” etc. How different is the language of R. C. C. 1433, which renders the heir bound to pay the whole debt by the hypothecary action, but reserves to him “ recourse against his co-heirs, or the other successors standing in their place, for the amount which he has been bound to pay for the discharge of the mortgage debt.”
    In our former brief we have adverted to the difference in the phraseology of Art. 1434 and of Arts. 1441 et seg. — the former of which speaks of subrogation, while the latter use the word recourse. If subrogation carries with it recourse, how could one article give to the particular legatee what the other articles refuse him? What the motive of the Legislator was in not using the same expressions, if they were synonymous, remains a mystery to us.
    In regard to the weight to be given to Art. 1642 and to the principle that particular legatees are not liable for succession debts, why should it be contended that the provisions of Arts. 1441, 1442 can not be reconciled therewith? Does not Art. 1642 prescribe that the particular legatee shall be liable to the action of mortgage on the part of the creditors of the succession? Why should he not, in such a case, be refused all recourse against the heirs, as Art. 1441 ordains?
    This is not a matter of paying succession debts; it is more properly the receiving of a particular legacy cum onere, as would be the case of a usufruct. Indeed, the article itself furnishes the explanation; because by receiving the legacy he is considered as having received it with the incumbrances with which it was charged. R. O. O. 1441.
    And to the same effect are the words contained in the following article: “To be reimbursed (the heirs) for having discharged and disengaged the object bequeathed, which they were not obliged to do. R. O. O. 1442.
    Argued and submitted, May 24, 1895.
    Opinion handed down, June 3, 1895.
   The opinion of the court was deliverd by

Miller, J.

The question in this ease is whether the special legatee of the immovable is bound for the debt contracted by the testator, subsequent to the will, and which he secures by mortgage on the immovable. The judgment of the lower court made the heirs and executors liable.

The articles of our code like those corresponding in the Napoleon •Code seem to exhibit some conflict. The articles, 1688, 1440, 1441, 1442 and 1444 all tend to pass the property to the special legatee subject to the mortgage, that is the executor, heir or universal legetee, is to deliver the immovable in the condition it is when the testator’s death occurs, and is not bound to discharge the mortgage debt. It is the explicit declaration of the first of these articles that, if prior to the testament or subsequently, the testator mortgages the subject of the special legacy, whether for his own or for the debt of another, the heir or universal legatee or executor is not bound to discharge the incumbrance, unless required by an express disposition of the testator. This article is found in that part of the Oode that treats of particular legacies, the rights of the legatee and the obligations of the executor and heirs of the testator, with respect to the legacy. Under one of the subdivisions of the rubric of the Oode, “ of the payment of the debts of the succession,” the four articles, 1440 to 1444, declare the liability of the particular legatee to the hypothecary action of the creditor holding the mortgage on the property bequeathed, reserving to the legatee the right to abandon. If abandoned, there shall be no recourse of the legatee on the heir, for it is declared the legatee received the property subject to the incumbrance with which it is charged; if, on the contrary, the heir pays the mortgage, he shall recover from the special legatee for disengaging the thing bequeathed, which he was not obliged to do; and finally, if the mortgage was granted by the testator for the debt of a third person, in that case the articles confer on the legatee the right to recover from the third person the same as if the testator could if he had made that payment. The articles 1441 to 1444 were additions to the Code of 1825.

The jurists who reported the code of 1825 thuoght these four articles, 1441 to 1444, essential to settle the doubt they conceived to exist as to the non-liability of the heirs for the mortgage debt od the property specially bequeathed. That doubt they concieved to arise from Art. 226 of the Code of 1808 declaring the particular legatee paying the mortgage debt, should be subrogated to the creditor’s rights against the heir. The jurists advised the suppression of that article. But notwithstanding the recommendation the article found its way into the code of 1825 as Art. 1383, now 1434, of the Revised Code. Along with it, however, are the Arts. 1441 to 1444. It may well be that the insertion of these four consecutive articles, all distinctly affirming the liability of the special legatee, or at least of the property bequeathed for the mortgage debt, was deemed entirely sufficient to preclude any future doubt on that point. In that opinion we concur. The added articles are couched in the plainest language. They affirm the liability of the property the subject of the special legacy, for the mortgage debt resting on it. They expressly deny any such liability of the heir, and if he is compelled to pay, gives him an action to recover from the special legatee. This language, enough in itself, is aided by the light we have of the purpose of the additions to the code.

The jurists of 1825 had reason to suggest the divergent views of the French commentators on the articles in the Napoleon Code on the subject. Art. 1020 of that Code, corresponding with 163 of our Code, announced that the particular legatee was bound to pay the mortgaged debt on the thing bequeathed, unless the testator directed otherwise. But Art. 874 of the Napoleon Oode, like our Art. 1434, subrogated the legatee, who paid to the creditor rights against the heir. In favor of the liability of the heir were Marcade, 4th Vol. 95; Toullier, 5th Vol. 538; Ohabot and Laurent may be added, 14th Vol. 97. The jurists were impressed with the better opinion as they esteemed it, that unless charged by the testator there was no such liability of the heir as implied in Art. 874 of the Napoleon Oode. The discussion by some of the French jurists reconciles the seeming conflict between the articles of the Napoleon Oode, by supposing that the Art. 874, corresponding with our Art. 1434, applies only to general mortgages. If the special legatee pays the mortgage bearing on all the property of the succession, there is in the subrogation against the heir conferred in that case no inconsistency with the article that burdens only the property specially mortgaged with the mortgage upon it. Another and obvious mode of harmonizing the articles is that thus expressed : II faut entendre que Particle 874 s’applique aú cas ou Pheritier a ete charger par le testateur de fournir la chose leguee franche et quitte de toutes charges et Phypotheque, et dans tout autre cas Particle 1020 (i. e., that frees the heir or executor from any liability for the special mortgage) met Pheritier a l’abri du reeours de legutaire.” Gilbert Code Anotes. Notes to Art. 1020. There is still another view cited from Gilbert, suggested in Paillet Manuel de droit Frangais. Notes on Arts. 1020 and 874. We think that even under the articles in the Napoleon Code, and those in our Code before the additions of 1825, admitted of full effect on the familiar rule of interpretation that assigns to each its scope and gives effect to all.

The discussion with us however must be deemed closed. If Arts. 1441 to 1444 of our Oode had been in the Code Napoleon, it is not conceivable that the discussion of the French commentators could have ever occurred. As the Code now stands, there can be, in our view, no doubt the heir or executor is not bound to pay the mortgage debt on the property the subject of the special legacy, unless required by the will. There is in this case no such requirement. It is to be observed that our jurisprudence, as far as it goes, affirms our conclusion. Succession of Sinnott, 3 An. 175; Succession of Coste, 43 An. 144; Eskridge vs. Farrar, 34 An. 709.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and that there be and hereby is judgment in favor of defendants in rule, with costs.  