Succession of Blakemore

The opinion of the court was delivered by Bermudez, O. J.

This controversy arises among the collaterals of the deceased and involves the interpretation to be placed npon his will, which is in the olographic form.

The application of two of his nephews for the probate and execution of the will was resisted by the collaterals on several grounds:

1. That the testator has ignored it by throwing it aside, with the. intention of revocation.

2. That the testator has, since the execution of it, disposed of the property bequeathed.

3. That the bequest is a special one, applying only to the property owned by the testator at the time of the will.

*848 I.

The first opposition rests on the fact that the will, which was executed in 1880, was found, at the death of the testator, which occurred in 1890, among worthless papers, in a valise in a locked room.

A will is a solemn act, which, when clothed with the exacted forms, and not violative of law in its dispositions, must be respected and executed, unless it has been revoked and annulled in some manifest manner, indicating a repudiation of its contents by its author.

It may be revoked expressly by a subsequent testamentary disposition, by the erasure of the signature to it, by its actual physical destruction, or tacitly in an unmistable manner, by the testator himself. The mere putting it aside, intentionally or not, among worthless papers, assuredly does not even raise the shadow of the beginning of an intention to revoke it in any way.

The fact of its existence, under the circumstances of this case, suffices to justify the conclusion that the testator did not intend to recall it, and that he has not done so.

II.

The second objection is, that the testator has disposed of the property bequeathed, and that he has thereby revoked the legacy.

It is true, that the law so provides, R. C. C. 1695, but it is likewise so that it is inapplicable to the facts established in the record.

There is evidence showing a sale of the property by the testator to a certain party, on certain terms of payment, part cash and part on credit; but the purchaser admitted that the transaction was a simulation, and the proof is, that the property was put back in the vendor’s name, by the vendee.

It appears that the ceremony was resorted to by the vendor, not at all with a view of divesting himself absolutely of all title to it, but, on the contrary, for the purpose of placing it beyond a threatening danger, and thus of preserving it; possession continuing on him uninterruptedly.

“ La vente n’entrainera pas la invocation du legs, s’il est évidemment prouvé par les cireonstances que telle n’a point été l’intention du testateur.” Pandectes francaises. C.'N. annoté par Labaye, art 1038, p. 468, note.

*849 III.

The third objection is, that the bequest is special, applying only to the property owned by the testator at the time of the will.

In point of verbiage, orthography and punctuation, the will is far from being artistic; but, however drawn up, it is sufficiently clear and expressive, to make known the intentions of the testator unequivocally.

The proof shows that, at the date of the will, 1880, Blakemore owned property in Tennessee and Louisiana, and nowhere else.

He was a bachelor and had raised three nephews, sons of a deceased widow sister, for whom he felt a great attachment.

He was not on good terms with his brothers, and so indisposed, that he was unwilling to leave them any share in his succession.

He, however, resented no ill feeling against the children of J. H. Blakemore and H. C. Blakemore, but was rather kindly inclined to them.

When he drew up his will on the 25th of November, 1880, he was under a presentiment of an early death, which was not, however, verified.

His intention was to dispose., mortis causa, of all his property, which consisted of that jn Tennessee and that in Louisiana.

That in the first State he disposed of in the following words: * * * u my reai estate in Tenn I want it divided between J. Haywood & H. C. Blakemore’s airs.”

That in the second named State (Louisiana), which eonstituted’the residue of his estate, he disposed of in the following terms:

“ I this day giv D. A. Reas one-half of real estate and one-half of the pearishable propity and Robert Reeas the other half in La. They air to take car — J. W. Reeas the best they now how until he is of age, and he is considered to not have a good mind. I dont think it proper for me to give (him) any of my propity.”

The inspiring or determining motive of the objection is, that, subsequent to the date of the will, J. O. Blakemore acquired considerable property, touching which he died intestate, and which, therefore, descends to his collaterals, .as his legal heirs.

The proposition rests upon the theory that the bequest to the Reeas (Reese) is not a universal, but a special or particular legacy not susceptible of augmentation without a new disposition, and that *850 under it, the legatee takes only the property in existence at the date •of the will.

It has been well observed that the law is indulgent to testators, Who are inopes consilii. It exempts language from technical restraint and obeys the clear intention, however informally conveyed. If obscured by conflicting expressions, it seeks the intention in a purpose, consistent and rational, rather than the reverse; and, •of two interpretations, it selects that which saves from total intestacy. The testator’s intention is his will. ' This is the first rule of interpretation, to which all others are reduced. The intention must be enforced, as far as it can be done legally.

In the present instance, it is apparent that the testator designed to •dispose of all his property in view of his death, which he thought was not distant, and he wanted to dispose of the whole of it, in part in favor of the children of two living brothers, and for the balance, in favor absolutely of two sons and to some extent of another son of a deceased sister, for whom he entertained special affection and tenderness.

It is manifest that the testator here did not desire that those two brothers, or any other collateral not named in the will, should inherit from him, not only because they were left out, but also because of expressions in the will, which it is not necessary to reproduce, but which are indicative of feelings other than those which cordial friendship, or even indifference, suggests.

From all the circumstances of this case, the tenor and physiognomy of the will, we are satisfied that the testator intended to institute the sons of his sister his universal legatees; that he has done so, and that it is the duty of the coux-t to carry out fully his behest.

The argument that the bequest, being a particular legacy, embraces only the property in esse at the time of the making of the will and does not include future property, has no force, as the testamentary disposition is an institution of a universal legacy. Article 1722, R. C. C., has, therefore, no application.

The rulings in 12 An. 286 and 603 were obliterated in the Burnside decision, in 35 An. 708, and affirmed in 35 An. 1054, and the earlier jurisprudence was recognized and applied. 8 L. 489 ; 12 Rob. 56 ; 3 An. 705; 8 An. 252.

So that, it is law, that a universal legacy embraces as well property in being at the date of the will as that existing at the time of *851 death, constituting the succession of the testator, although the will expresses no time, either past or future.

From that standpoint the irresistible conclusion is, that all the property in existence at the death of J. O. Blakemore, except that in Tennessee, specially bequeathed, and which has not lapsed, has ■descended by the will to D. A. and Robert Reese, with the attached burden.

This consideration might have dispensed with a determination of the second objection, relative to the revocation of the bequest by the sale of the thing bequeathed. We do not think it necessary ■or useful to answer the question put, to know whether by the predecease of the legatees of the Tennessee land, that property would, by the lapse, have been also inherited by the Reese brothers.

Courts have enough to deal with existing troubles, without eon•cerning themselves uselessly with imaginary difficulties, which, should they arise, can then be solved.

It is therefore ordered and decreed that the judgment appealed from, as far as it admits the will of the deceased to probate and ■execute it, be affirmed, and that in other respects it be reversed; and,

It is now ordered and adjudged that said will receive its full and entire execution, and, accordingly, that D. A., Reese and Robert Reese, named therein, be and they are hereby recognized as the universal legatees of the deceased J. O. Blakemore, and that, as ■such, they do have and take the residue of his succession with the burden attached to the legacy of earing for their brother J. W. Reese, and that the opponents and appellees, who have moved an amendment of the judgment in appeal, pay the costs in both courts.