
    
      PARKINSON & AL. vs. M'DONOUGH & AL.
    
    Appeal from the court of probates of the parish and city of New Orleans.
    Accretion takes: place a-ajong' legatees in case jof the Ie~ *£®uld o7lthentsen™nce l°
   Matthews, J.,

delivered the opinion of the , . , , court. In this case the plaintiffs claim, by ac-:: Cretion or right of survivorship, a certain portion of the estate of Shepherd Brown, de- * . ceased, held and administered by the ocien-dants, as testamentary executors.

The question submitted for the decision of the court, depends on a just and legal in-terpretaiion of a clause in the will of the tes tator Brown, by which he bequeathed to four of the orphan children of Godfrey Duher, then under his charge and protection, one share or one eighth part of his property: and this question is limited to a decision on the respective rights of these co-legatees, as based on the doctrine of accretion or survivorship, and the legal heirs of one of them, who died before partition or having obtained possession of his share of the legacy, and before the period at which, according to the terms of the will, the executors were bound to deliver it to him. ■

The judgment in the court of probates being against the rigid of accretion, under the clause of the testament above alluded to, the plaintiffs appealed.

In cases of doubtful or equivocal expressions in testaments, when disputes arise on matters to which they relate, it is a primary duty of courts of justice to ascertain with all . . . . . _ , possible precision the intention of the testator, and if it be consistent wish law, to give it effec^* The clause of the will now under consideration, and on which the present contest arises, is expressed in the following terms. “ 1 will, and bequeath to the orphan children of my old friend Godfrey Duher, and which are now under my charge, and are named Mary, Nancy,. James, and Eliza,-one .share, or one eighth part of all my property, to be equally divided among them; the same to remain in the hands of John Hiram Brown and my friend Jobo MfDonough, and by them employed in the education and support of them, and the balance remaining after this, if any, to be paid to them as they arrive at age or marry, recommending particularly to my friend and nephew the guardianship and protection of these my adopted little ones.” We find here expressed a fatherly affection towards these orphans on the part of the testator. This affection probably grew in part out of the friendship which seems to have subsisted between him and their deceased father; but was no doubt perfected, and received its greatest strength from the circumstance of their having been thrown, helpless, under his charge and protec- * _ lion. By performing the offices of a father towards them,they became unto him as children: he calls them his adopted, and as such, no doubt, intended to provide for them''by this-clause of his will, and that they alone should take the property bequeathed by it, in exclusion of all others, for their mutual benefit, or in legal terras conjointly. Believing this to have been the intention of the testator, it remains to enquire whether it be expressed in such a manner as to authorise the court, in pursuance of law, to give it effect. The cause has been argued somewhat elaborately by Che counsel for the appellants, and in the argument, the court has been referred to decisions of the court of chancery of England, on the construction or interpretation of testaments, in relation to the vesting of legacies, &c.; to treatises on the civil law ; and to Toullier on the Code Napoleon; also to the Civil Code lately in force. On this last authority the counsel for the ap-pellees relies, and did not argue the case, as its decision in any way will not affect their interest. We have examined attentively the lexis and commentaries found in the two last authorities, as containing doctrine most applicable to the point io dispute. We have . aireadj quoted the clause hi the «ill, which gives rise to the contest; and as it regards ⅛© facts of the case, ⅛ is only necessary to state that James, one of the co-legatees, died before marriage, or arriving at the age of majority.

The rules laid down on the subject of accretion, in relation to testamentary dispositions, are contained in arts. 195, 196, and 197* at page 250 of the former code. Art. 195, on the interpretation of which the present question depends, is expressed in the following words : “ Accretion shall take place for the benefit of the legatees, in case of the legacy being made to several conjointly. The legacy shall be reputed to be made conjointly, when it is made by one and the same disposition, without the testator having assigned the part of each eo-legatee in the thing bequeathed.

This article of our code is verbatim similar to the 1044th of the Code Napoleon.

The testator, in the present case, bequeaths ■o four persons one eighth part of his estate, to be divided equally among them. Is this a legacy made without assigning to each co-legatee his part in the thing bequeathed r

The thine; bequeathed is one eighth part of . , the testators succession, which he gives to be equally divided between four persons, to whom the bequest is made conjointly, according to the first member of the sentence; but according to the second, they are to par-lake of it in equal portions. Considering both as constituting one and the same, disposition, it would seem that the part of each co-legatee was assigned in the thing, and that one fourth of the one eighth of the testator’s estate was vested in each .of these legatees separately, consequently, they cannot acquire from each other by accretion or survivorship. This would perhaps be a construction most readily given to the clause of the will now under, discussion. But it is contended, for the appellants, that ¡.lie terms in which this bequest is made, must be so construed as to give the full force of a complete - testamentary disposition to the first member of the sentence, which is in itself perfect, in point of sense, meaning, and intention: the second only relating to the manner of executing or carrying into effect the disposition thus made.

Notwithstanding the apparent simplicity oí the principles to which the code seems to have reduced the doctrine of accretion, (which was held to be the most -subtle of the civil Saw-) still the application of those principles to cases arising under it, is not entirely free from difficulty.

If the interpretation contended for by the appellants be tolerated by law, it will afford the means of giving effect to the intention of the testator in the present case.

In order that accretion may take place among co-legatees, it is necessary, according to the code, that they should be conjuncti re el verbis: except in cases where things bequeathed to several persons separately, are not susceptible of division without deterioration ; a circumstance which authorises accretion, inter conjunctos re tantum.

The distinction between a bequest of a thing to many in equal portions; and one wherein a testator gives a legacy to two or more individuals, to be divided in equal portions; appears at first view’ extremely subtle and refined. The difference of phraseology in those two modes of bequeathing is so slight as not readily to convey to the mind any difference in . ideas; ; and can only produce this efléct by separating the members of the sen-teace in the latter phrase; in truth to create two distinct sentences, each complete in itself n ith regard to sense and meaning; the one relating to the disposition of the will, the other to its execution. We might hesitate much in adopting this method of construction, were it not sanctioned by the authorities cited in behalf of the appellants: the doctrine contended for is fully supported by the Commentary of Toulier, on the 1044th article of Code Napolean, which we have already shown to be precisely similar to that of our own code on the same subject. See 5 Toullier, p, 645, 646, and 647, nos. 689, 690, 691, and 692.

Waifs it Lobdell for the plaintiffs, Grymcs for the defendants.

From this examination of the cause, it is readily perceived that the law against substitution is inapplicable to the question before the court.

ft is therefore ordered, adjudged, and decreed that the judgment of the court of probates be avoided, reversed, and annulled, and that the case be remanded to the court of probates, to be proceeded in de novo according to law’.  