
    (103 So. 515)
    No. 20278.
    Succession of RUSHA.
    (On Motion to Dismiss, April 7, 1924.
    On the Merits, March 2, 1925.
    Rehearing Denied March 30, 1925.)
    
      (Syllabus by Editorial Staff.)
    
    On Motion to Dismiss.
    1. Appeal and error <&wkey; 150 (3) — Executor has interest to appeal from judgment directing him to place claimant and her children on his account for legacy.
    An executor has an interest authorizing an appeal by him from a judgment directing him to place claimant and her children on his account for a legacy.
    
      2. Appeal and error t&wkey;>395 — That amount of appeal bond was not fixed by trial judge held not ground for dismissal of appeal.
    That the amount of an appeal bond was not fixed by the trial judge held not ground for dismissal of the appeal, where the trial judge allowed the appeal on condition that appellant furnish bond according to law, and the appeal bond given was more than 1% times the amount involved, in view of Code Prac. art. 575.
    On the Merits.
    3. Wills <&wkey;94 — Testamentary dispositions can be made only in writing in form and manner prescribed.
    Testamentary dispositions can be made only in writing, in the form and manner prescribed by law.
    
      4. Wills &wkey;>297(l) — Parol evidence as to verbally declared intentions of deceased held not admissible to establish testamentary disposition.
    Parol evidence, as to'verbally declared intentions of the deceased, held not admissible to establish testamentary dispositions in view of Civ. Code, arts. 1712, 1714, 1715.
    5. Wills <&wkey;>!84(4) — Codicil held to revoke legacy and not ambiguous so as to admit parol evidence.
    Where a codicil provided “part of E. revoke [d], on account of his education at Holy Cross College,” held) that the legacy was revoked and not merely reduced, by amount of college expenses, and codicil was not ambiguous, so as to admit parol evidence of testator’s verbal declarations as to her testamentary intentions towards F.
    Appeal from Civil District Court, Parish of Orleans; Mark M. Boatner, Judge.
    In the succession of Miss Ida Rusha. From a judgment directing him to place a certain claimant and her children on his account for a legacy, the executor, Charles H. Haight, appeals,
    Judgment reversed, oppositions rejected, and account approved.
    Louis R. Alba, 'of New Orleans (D. V. Doussan, of New Orleans, of counsel), for appellant.
    J. H. Pugh, of Donaldsonville, for E. & J. Kinberger.
    J. E. Pierson, C. I. Denechaud, and Claude L. Johnson, all of New Orleans, for appellees Heirs of Charles Eessler.
    By Division C, composed of OVERTON,' ST. PAUL, and THOMPSON, JJ.
   On Motion to Dismiss.

ST. PAUL, J.

The executor appeals from a judgment directing him to place the appellee and' her children on his account for a legacy of $7,000 (net).

The trial judge did not fix the amount of the appeal bond, but allowed the appeal conditioned on the appellant furnishing bond “according to law.”

The appeal bond given was for $12,000 which is more than one and a half times the amount involved (C. P. art. 575).

The appellee moves to dismiss on two grounds: (1) That the executor is without right or interest to appeal; and (2) that the amount of the appeal bond was not fixed by the judge.

If

The first ground is without merit. In Succession of Cassidy, 40 La. Ann. 827, 5 So. 292, this court said:

“An executor lias an interest to appeal [and it is his duty to do so] whenever it is sought to wrest from him property belonging to the succession, or to impose a debt upon it which will diminish its assets in the fund to be distributed among the heirs or creditors,” citing Succession of McKenna, 23 La. Ann. 370; Succ. of Charmbury, 34 La. Ann. 25; Coyle v. Succ. of Creevy, 34 La. Ann. 541.
“The cases referred to in support of the motion [to dismiss] only apply to the case of a contest of creditors over a fund in the hands of an executor or administrator for distribution, and the determination of which cannot add to or diminish the assets of tlie succession; as where the litigation only concerns the rights of opposing creditors to a certain fund or the right to be paid by preference out of it. In such case it is a matter of indifference to the executor which creditor succeeds, and he has no interest whatever in the judgment determining the question.”

II.

As to the second ground urged for dismissal, this court said in Succession of Huxen, 149 La. 61, 88 So. 687:

“The next ground relied on [for dismissing the appeal taken by the administratrix] is that the (amount of the appeal) bond should have been fixed by the judge, and was not so fixed. The judgment recognizes plaintiff as a preferred creditor of the succession for $219, with interest from May 29, 1915, and orders that the administratrix amend her account accordingly. She gave bond for a suspensive appeal in the sum of $400. This court has, no doubt, held that, where in such case an administratrix gives a bond for costs in an amount fixed by the judge, it will suffice for the purposes of the appeal, but it seems safe to say that no ease can be found in which the appeal has been dismissed because an administrator gave bond in an amount exceeding by one-half the amount of the judgment, where the judgment was for a specific sum; nor do we see any reason, from any point of view, why such an appeal should be dismissed, since Act 45 of 1890, p. 38, amending and re-enacting article 575 of the Code of Practice, declares that, where the judgment is for a specific sum (and other conditions are complied with), its execution may be stayed, ‘provided the appellant gives his obligation with good and solvent surety,’ etc., ‘in a sum exceeding by one-half the amount for which the judgment was given,’ and, where, as in this case, the judge orders that the appeal be granted upon the appellant’s furnishing bond, with good and solvent surety according to law, he thereby fixes the amount of the bond. If, however, he do'es not, and there is error in the amount of the bond for that or any other reason, the case falls under the dominion of Act 112 of 1916, and, in the absence of any attempt on tbe part of the appellee to have the error corrected, ¡(tie bond, as given, must stand. [Citing] White v. Maison Blanche Co. et al., 142 La. 265, 76 South. 708.

Decree.

The motion to dismiss is therefore denied.

OVERTON, J.,

concurs in this opinion except as to the statement with respect to the effect of the act of 1916. As the opinion is sufficient without that statement to support the decree, he concurs also in the decree.

On the Merits.

ST. PAUL, J.

Exclusive of some $1,500 of jewelry bequeathed in kind, the deceased left an estate, which (when reduced to cash) aggregated a total of $37,649.93. After deducting $4,149.93 for expenses there was left $33,500, out of which her executor proposes to pay 27 undisputed special cash legacies aggregating $33,275.

In addition to the legacies above said, the deceased, by her will of October 7,1904, made also the following special legacies:

“I give and bequeath my gold watch and chain to Ida Fessler.
* * * * * * *
“To my God-son Charles Fessler, I give and bequeath $8,000.”
By a codicil, dated May 24, 1911, the testatrix declared:
“Leave portion of Ida Fessler to her mother Belle, account of child’s death.
it: *{C V sj:
“Part of Chas. Fessler revoke (d), on account of his education at Holy Cross College.”

I.

It is admitted that Charles Fessler entered Holy Cross College on November 10, 1909, and graduated therefrom on June 24, 1913, being then about 16 years of age; that his college expenses for that period amounted to $1,000 (about); that all these expenses were charged to, and paid, by the deceased, Miss Ida Rusha.

Charles Fessler claimed (and his heirs now claim) that the provision in the codicil of May 24, 1911, relating to him, was a mere reduction of $1,000 in the legacy made to him, and that he (and now his heirs) should be' allowed to participate in the distribution of the estate pro rata with the 27 cash legatees, on the basis of a $7,000 legacy to him (i. e. $8,000 less $1,000). And his heirs seek to have the executor’s account amended accordingly (he having died after the testatrix, but before the filing of the account).

II.

A considerable amount of conflicting testimony as to verbal expressions by the deceased, concerning her intentions testamentary towards her godson and protégé Charles Fessler, was admitted by the trial judge over the objection of the executor.

But we think all such evidence should have been excluded, or at least should ultimately have been disregarded.

Testamentary dispositions can be made only in writing in the form and manner prescribed by law for wills. Hence testamentary dispositions can never be established, as such, by any amount of parol evidence as to the verbally declared intentions of the deceased. And it is but one step from the explaining of a written testamentary disposition by proof of the verbal declarations of the testator, to the establishing of a verbal testamentary disposition; the line of demarcation between the two being very fine, if indeed it exists at all.

The Code nowhere expressly permits evidence of the testator’s verbal declarations when seeking for his intention, and in one instance at least seems to forbid it. R. C. C. art. 1714. Thus:

“Art. 1714. In case of ambiguity or obscurity in the description of the legatee, as, for instance, when a legacy is bequeathed to one of two individuals bearing the same name, the inquiry shall be which of the two was upon terms of the most intimate intercourse or connection with the testator, and to him shall the legacy be decreed.” .(Italics ours.)

In Succession of Thorame, 12 La. Ann. 384, and again in Succession of Tilton, 133 La. 435, 63 So. 99, there was obscurity in the description of the legatee, but we do not find that any evidence was admitted, or if admitted considered by the court, of any verbal declarations by the testator as to who that legatee should be; but the court considered only the facts and circumstances under which the will was made, and decided on those alone. See R. C. C. art. 1715.

III.

But in any event, to whatever extent parol evidence may be admissible for the purpose of explaining ambiguous terms in a testament, it can never serve to depart “from the proper signification of the terms of the testament.” R. G. C. art. 1712.

In the case before us it is said that the terms of the codicil of May 24, 1911, are ambiguous. We think not. The terms of the codicil are, “Part of Charles Fessler revoke(d), on account of his education at Holy Cross College.” If the first five words stood alone there could be neither doubt nor obscurity whatsoever as to the meaning; thus, “Part of Charles Fessler revoked.” And the only possible obscurity, if any, results from the addition of the words “on account of his education at Holy Cross College.” But the testatrix has herself furnished in that same codicil the key to her use of those words. Thus, “Leave portion of Ida Fessler to her mother Belle, account of child’s death.’’ 13oth clauses were written at the same time and in the same language; and therefore express the same thought; and that thought very clearly was the giving of a reason for the disposition made. Therefore, what the testatrix had in mind was clearly this, that she meant to affect in some manner (whether by revocation or by reduction) the legacy in favor of Charles Fessler, because she was giving him an education.

But the testatrix used the word revolted, not “reduced”; and we cannot depart from the proper signification of the term used by her, and substitute therefor another term having a different signification. R. C. C. art. 1712.

Our conclusion- is that the district judge erred, first, in admitting, over the objection of the executor, parol evidence of the testator’s verbal declarations as to her testamentary intentions towards Charles Fessler; but more especially in giving effect thereto, and thus departing from “the proper signification of the terms of the testament.”

Decree.

The judgment appealed from is therefore reversed; and it is now ordered that the oppositions to the final account herein filed be rejected, and that said account be now approved and the funds distributed accordingly; opponents to pay the costs of their opposition and of this appeal.  